John Yoo, who knows a bit about the assertion of Executive Branch authority, says Obama has gone way beyond the normal lines with his unilateral immigration reform.
Under Article II, Section 3 of the Constitution, the president has the duty to “take Care that the Laws be faithfully executed.” This provision was included to make sure that the president could not simply choose, as the British King had, to cancel legislation simply because he disagreed with it. President Obama cannot refuse to carry out a congressional statute simply because he thinks it advances the wrong policy. To do so violates the very core of his constitutional duties.
There are two exceptions, neither of which applies here. The first is that “the Laws” includes the Constitution. The president can and should refuse to execute congressional statutes that violate the Constitution, because the Constitution is the highest form of law. We in the Bush administration argued that the president could refuse to execute laws that infringed on the executive’s constitutional powers, particularly when it came to national security — otherwise, a Congress that had a different view of foreign policy could order the military to refuse to carry out the president’s orders as Commander-in-Chief, for example. When presidents such as Jefferson, Jackson, Lincoln, and FDR said that they would not enforce a law, they did so when the law violated their executive powers under the Constitution or the individual rights of citizens.
So far, so good. But I love his examples of where Obama's road might lead:
But prosecutorial discretion is not being used in good faith here: A president cannot claim discretion honestly to say that he will not enforce an entire law — especially where, as here, the executive branch is enforcing the rest of immigration law.
Imagine the precedent this claim would create. President Romney could lower tax rates simply by saying he will not use enforcement resources to prosecute anyone who refuses to pay capital-gains tax. He could repeal Obamacare simply by refusing to fine or prosecute anyone who violates it.
So what we have here is a president who is refusing to carry out federal law simply because he disagrees with Congress’s policy choices. That is an exercise of executive power that even the most stalwart defenders of an energetic executive — not to mention the Framers — cannot support.
Random tax cuts... tempting! OK, not really - I still think playing by the established rulle book makes mroe sense in the long run.
NIXONIAN! If memory serves, Nixon attempted to implement a de facto line item veto by impounding funds appropriated by Congress and simply refusing to spend them. That was overturned by something [an act of Congress upheld by a Federal Court and never taken to the Supremes] (NO, Ihave no idea why I am not Googling this, but I think the smell of breakfast is part of the explanation...)
Anyway, could Congress earmark funds for enforcement of these specific imigration laws? That is quite an intrusion on the Justice Dept, but Congress certainly does similar things with regard to, for example, closing military bases.
Just thinking out loud here...
And I should add - Obama's goal is to be seen as making the effort on behalf of Hispanics; an assertive Congress has many levers of power to block this, but at what net electoral cost or benefit?.