The term “hostage-taker” has been thrown around quite a bit lately, most often at Republicans in Congress, whom President Barack Obama accused of holding the country to ransom in last year’s shutdown fight over Obamacare. The latest and most brazen act of hostage-taking, however, is the President’s attempt to argue that if Congress does thinks his executive action on immigration violates the Constitution, it can simply “pass a bill.”
Here, President Obama is making his oath to uphold the Constitution and “faithfully execute” the laws of the United States contingent on agreement by the legislature to bow to his well. The nation can have the rule of law, so long as the laws that rule are those he agrees with. It should be obvious that such a condition actually negates the rule of law. It is hostage-taking in which the Constitution itself, and thus the country, are under threat.
A few left-wing intellectuals, who ought to know better, are joining the president in holding the proverbial gun to the country’s head. For example, constitutional scholar Bruce Ackerman of Yale recently defended President Obama’s action as a a “democracy-forcing” event.
Today, that dubious company is joined by law professor (and former Obama administration official) Stephen Legomsky in an op-ed in the Wall Street Journal Monday.
Legomsky recites a number of familiar arguments justifying Obama’s executive action (without acknowledging, of course that while he served in the administration, the President himself spent years arguing the opposite.) The president has prosecutorial discretion; he is still executing the laws because there will still be other illegal aliens to deport; Reagan and George H.W. Bush did “similar” things; and Obama’s decree is only temporary.
These are spurious arguments. Prosecutorial discretion is not intended to be so broad as to effectively nullify an entire the law. The President is not executing the law, and follows a pattern of failure to execute even those laws, such as Obamacare, that he supported. Reagan and Bush were acting pursuant to congressional law, not against congressional will; and far from being temporary, Obama himself has hinted at granting more reprieves.
When even John Yoo, one of the most forceful advocates of expanded executive power, calls Obama’s action “an exercise of executive power that even the most stalwart defenders of an energetic executive–not to mention the Framers–cannot support,” that is a sign that Legomsky is on very shaky ground.
Still, Legomsky reaches for the gun: “If the president’s congressional critics are truly unhappy with his temporary solutions, there is an easy remedy: Pass a bill that permanently fixes what all seem to agree is a broken immigration system.”
What Legomsky fails to explain is why Obama’s executive action is necessary–why such a lethal constitutional weapon should be a first resort, rather than a last resort. The “broken” immigration system, while a chronic problem, is not an urgent one–neither to the voters nor to the government. (If it were indeed urgent, the president ought to have acted years ago, rather than delaying any action for six years or after the elections.)
Furthermore, Legomsky places all of the blame on Congress. But Obama shares that blame–first as a Senator, when he torpedoed bipartisan immigration efforts; and then as president, when he rejected out of hand any approach that separated border security from legalizing those who had broken the law. (In fact, his refusal to enforce immigration and other laws undermined trust that would have helped Congress put a bill on his desk.)
Whatever discretion the president has, the legislature makes the law. If there is even a risk of a constitutional crisis, the prudent course for a leader who has sworn to “preserve, protect and defend” the Constitution ought to be exhaust all options before acting on his or her own.
At least now we know who the real “hostage-takers” are.
Senior Editor-at-Large Joel B. Pollak edits Breitbart California and is the author of the new ebook, Wacko Birds: The Fall (and Rise) of the Tea Party, available for Amazon Kindle.
Follow Joel on Twitter: @joelpollak
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