Americans who are outraged by President Barack Obama’s executive fiat on immigration law should look beyond lawsuits, government shutdowns and impeachment efforts toward a long-term, decisive plan to end federal overreaching.
The president’s job is to “take care that the laws be faithfully executed.” While it’s clear enough to the average person that telling millions of illegal immigrants, “[W]e’re not going to deport you,” is something other than faithful execution of immigration law, the administration’s actual plan is more nuanced.
The plan, on paper, is to “prioritize” enforcement for those who threaten national security, and to affirmatively grant “deferred action” status to many who don’t. Obama stakes his claim of constitutional legitimacy upon a 33-page legal analysis by Principal Deputy Assistant Attorney General Karl Thompson.
After recognizing the president may not completely abdicate enforcement of laws (except, of course, when the Executive Branch believes the law is unconstitutional, à la DOMA...), Thompson points out:
“The open-ended nature of the inquiry under the Take Care Clause — whether a particular exercise of discretion is “faithful” to the law enacted by Congress — does not lend itself easily to the application of set formulas or bright-line rules.”
Thompson ultimately concludes executive agencies are vested with sufficient “prosecutorial discretion” to decide when and how to enforce the laws it is charged with enforcing.
Prosecutorial discretion has long been recognized in a number of contexts, and for good reason. Our government simply does not have the resources to actively enforce every law against every lawbreaker.
But while the exercise of prosecutorial discretion for enforcement on a case-by-case basis is necessary, a blanket policy of refraining from enforcing the law against an entire group — because Congress has not legislated this policy — is something entirely different. It eviscerates the separation of powers.
Maybe the courts will intervene. But unless we, the people, take decisive action to resolve this perennial problem, chief executives will continue to use technical analyses and claims of “prosecutorial discretion” to subvert laws enacted by our elected lawmakers.
The convention mechanism in Article V of the U.S. Constitution allows us to act, through our state legislators, to “check” such federal mischief by proposing and ratifying constitutional amendments.
If two-thirds of the states (34) apply, Congress is required to call a convention for proposing amendments. Proposed amendments become part of the Constitution upon ratification by three-fourths of the states (38).