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Constitutional Law

Did Obama Violate the Take Care Clause by Staying Some Deportations? John Yoo Weighs In

Posted Oct 9, 2012 5:29 AM CDT
By Debra Cassens Weiss

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President Barack Obama effectively wrote into law the failed DREAM Act when his administration announced in June that it would not deport many illegal aliens under 30 who came to this country as children, two law professors say.

The president also breached his constitutional duty to enforce the laws under the take care clause, according to a working paper posted at SSRN by law professors John Yoo of the University of California at Berkeley and Robert Delahunty of the University of St. Thomas in Minneapolis.

“The Constitution confers no express or implied power or authority not to enforce the laws,” they write. “On the face of it, the Obama administration breached its constitutional duty by refusing to enforce the immigration law in (up to) 1.7 million cases.”

During the 2008 presidential campaign, Obama criticized President George W. Bush for what Obama viewed as improper assertions of executive power. Obama has been equally assertive, the law professors argue, and he is using a new tool when flexing his executive muscle: prosecutorial discretion.

The article says the administration cited that justification in the deportation announcement and in three other decisions: Stopping prosecutions for medical marijuana in states that allow it; refusing to defend the Defense of Marriage Act; and shielding Attorney General Eric Holder from prosecution for contempt of Congress.

They see a slippery slope in prosecutorial discretion. “Can a president decline to enforce the deportation statute against all illegal immigrants because of a belief in an ‘open borders’ policy?” they ask. “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?”

Hat tip to the Faculty Lounge.

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