“When the president does it, that means it’s not illegal.”
— President Richard Nixon
Early in the presidency of Barack Obama, some activists pressured him to stop deporting illegal immigrants brought here as children.
But Obama was a smart lawyer surrounded by other smart lawyers. He even boasted that he had been a Constitutional law professor. He had actually just been a part-time and untenured instructor, but he still knew that the president had no authority to ignore the immigration laws.
According to the New York Times and Washington Post, he clearly said so. In fact, according to the fact-checker Politifact, he said so at least 17 times.
But then he did it anyway. He issued an executive order stopping the enforcement of the nation’s immigration laws — passed by bipartisan majorities and in effect for many years — against nearly a million illegal immigrants.
He was right the first 17 times, and wrong the 18th. The president has no authority to ignore laws he doesn’t like. Section 3 of the Constitution specifically requires that the president “take care that the laws be faithfully executed.” In his oath of office, the president swears to “faithfully execute the office of President of the United States.”
Two centuries of American jurisprudence hold that this language means what it says. The president has no authority to make laws he likes, and no authority to negate laws he doesn’t. If he had such authority, we’d have no legislative branch or judicial branch.
But Obama got away with ignoring the law because the people who are supposed to stand guard over our Constitution — the media, law school professors (the real ones) and the rest of the liberal establishment elites — liked the result. They liked granting amnesty to illegal immigrants.
If you don’t buy that, imagine for a moment how they would have reacted to President George W. Bush or President Donald Trump ignoring the law.
My point today is not to debate whether it’s good policy to grant periodic amnesty to illegal immigrants — both retrospective amnesty for their past illegal actions together with prospective amnesty for their future ones.
Nor is it to debate whether the Dems should have addressed the matter early in Obama’s first term when they held super-majorities in both houses of Congress. Nor is it to debate whether Obama’s executive order backfired by taking the pressure off Congress to address the problem. Nor is it to debate whether Obama’s order was unintentionally cruel in leaving a million people in limbo and at the mercy of the whims of all subsequent presidents.
No, my point today is broader than immigration policy. It’s that Obama’s refusal to enforce our immigration laws has set the country on a dangerously slippery slope. If a president can ignore the laws defending the borders against a million people crossing them illegally, is there any law he cannot ignore?
Hypothetically speaking, can a president use the national security apparatus to conduct surveillance of opposing politicians? Can a president direct the IRS to scrutinize the tax filings of political activists who he doesn’t like? Can a president whitewash a FBI investigation because it’s someone in his own party who is being investigated? Can a president order up drone strikes of American citizens?
If your answers to these questions are no, then draw for me a principled distinction between the immigration laws and the laws prohibiting the actions described in the preceding paragraph.
A distinction that relies on your favoring one set of laws over another or one political party over another is not a principled one.
So here we are. We live in a dictatorship. Our two dictators so far — Obama and Trump — have been mostly benevolent ones. (If you think either is a non-benevolent dictator, talk to the hapless citizens of North Korea about theirs.)
Someday, however, we will get a president/dictator who is less benevolent. Someday we’re likely to get someone much worse than Nixon.
When that day arrives, remember who started us down this path. It wasn’t Nixon. We stood up to Nixon and stared him down.
The man who took us a step closer to dictatorship was the self-described Constitutional Law professor. He knew exactly what he was doing and so did his enablers. It was Obama.
(Published Mar. 3, 2018 in the Aspen Times at https://www.aspentimes.com/opinion/glenn-k-beaton-we-let-obama-defy-the-law-and-took-a-step-toward-autocracy/)