Academic journal article
By Delahunty, Robert J.; Yoo, John C.
Texas Law Review , Vol. 91, No. 4
As a candidate in the 2008 presidential election race, Barack Obama vigorously denounced the 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 the area of national security, foreign policy, and military affairs (where the Executive has long held sway),3 the 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.4
The Obama Administration has been equally assertive in domestic matters. Especially since the Republican congressional victories in the 2010 midterm elections, the 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 the 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 the congressional elections of 1986, began to issue Executive Orders far more frequently.7
The Obama Administration's preferred tool for domestic policy, however, is new: using "prosecutorial discretion" not to enforce statutes with which the President disagrees.8 In 2009, the Department of Justice stopped enforcing federal drug laws against individuals whose actions comply with "existing state laws providing for the medical use of marijuana."9 In 2011, the Department of Justice decided that it would not defend a provision of the Defense of Marriage Act in the federal courts.10 The Administration has also relied on "prosecutorial discretion" to shield Attorney General Eric Holder from prosecution for contempt of Congress.11
The Obama Administration has claimed "prosecutorial discretion" most aggressively in the area of immigration. The most notable example of this trend was its June 15, 2012 decision not to enforce the removal provisions of the Immigration and Nationality Act (INA) against an estimated population of 800,000 to 1.76 million individuals illegally present in the United States.12 By taking this step, the Obama Administration effectively wrote into law "the DREAM Act,"13 whose passage had failed numerous times.14
The President's claim of prosecutorial discretion in immigration matters threatens to vest the Executive Branch with broad domestic policy authority that the 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 the 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 the income tax laws? Can a President effectively repeal the environmental laws by refusing to sue polluters, or workplace and labor laws by refusing to fine violators?
In this Article, we use the Administration's June 15 nonenforcement decision as a lens through which to examine the Executive's law enforcement powers and responsibilities. We do not address the 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 the United States Armed Forces. We argue that the Constitution's Take Care Clause imposes on the President a duty to enforce all constitutionally valid acts of Congress in all situations and cases. …