Dream On: The Obama Administration's Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause
2013; Texas Law Review Association; Volume: 91; Issue: 4 Linguagem: Inglês
ISSN
1942-857X
AutoresRobert J. Delahunty, John Yoo,
Tópico(s)Migration, Refugees, and Integration
ResumoI. IntroductionAs a candidate in 2008 presidential election race, Barack Obama vigorously denounced Bush Administration for what he argued were extreme and indefensible assertions of executive power.1 As President, however, he has frequently taken action by claiming broad executive power.2 In area of national security, foreign policy, and military affairs (where Executive has long held sway),3 Administration has conducted an undeclared cyber-war against Iran, used military force to bring about regime change in Libya, pursued a proxy war in Somalia, and prepared for more extensive shadow warfare in Africa.4The Obama Administration has been equally assertive in domestic matters. Especially since Republican congressional victories in 2010 midterm elections, Obama Administration has taken measures based on claims of sole executive authority, even after Congress has considered but rejected such proposals.5 To be sure, earlier Administrations also deployed executive powers before a hostile Congress. In early January 2007, not long after his party had been defeated in 2006 congressional elections, President George W. Bush announced plans for a surge of U.S. military forces in Iraq.6 President Ronald Reagan, in a similar situation after congressional elections of 1986, began to issue Executive Orders far more frequently.7The Obama Administration's preferred tool for domestic policy, however, is new: using not to enforce statutes with which President disagrees.8 In 2009, Department of Justice stopped enforcing federal drug laws against individuals whose actions comply with existing state laws providing for medical use of marijuana.9 In 2011, Department of Justice decided that it would not defend a provision of Defense of Marriage Act in federal courts.10 The Administration has also relied on to shield Attorney General Eric Holder from prosecution for contempt of Congress.11The Obama Administration has claimed most aggressively in area of immigration. The most notable example of this trend was its June 15, 2012 decision not to enforce removal provisions of Immigration and Nationality Act (INA) against an estimated population of 800,000 to 1.76 million individuals illegally present in United States.12 By taking this step, Obama Administration effectively wrote into law the DREAM Act,13 whose passage had failed numerous times.14The President's claim of prosecutorial discretion in immigration matters threatens to vest Executive Branch with broad domestic policy authority that Constitution does not grant it. For if a President can refuse to enforce a federal law against a class of 800,000 to 1.76 million individuals, what discernible limits are there to prosecutorial discretion? Can a President decline to enforce federal laws barring that class from voting in federal elections? Can a President decline to enforce deportation statute against all illegal immigrants because of a belief in an open borders policy? Can a President who wants tax cuts that a recalcitrant Congress will not enact decline to enforce income tax laws? Can a President effectively repeal environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?In this Article, we use Administration's June 15 nonenforcement decision as a lens through which to examine Executive's law enforcement powers and responsibilities. We do not address merits as a matter of immigration policy, although both of us favor a speedier path to citizenship for illegal aliens who were brought here as children and are enrolled in school or serve in United States Armed Forces. We argue that Constitution's Take Care Clause imposes on President a duty to enforce all constitutionally valid acts of Congress in all situations and cases. …
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