The way a government with different branches like ours is supposed to work is that the legislature makes the laws, the President enforces them, and the Courts interpret them. No one is supposed to have all the power. But in at least two areas Obama has embraced a relatively novel idea that he will simply ignore and not enforce laws that he doesn’t agree with; indeed, he will do exactly the opposite through executive order. He did this in refusing to have his Solicitor General defend the Defense of Marriage Act when it was challenged on appeal. And he has done it more recently by partially enacting through selective enforcement the DREAM Act, which provides amnesty for illegal who claim to have been here when they were minors. Since illegals are so often under the radar, the supporting paperwork is often nonexistent. Many come here to work as child laborers off the books. How can anyone prove when exactly they arrived? More important, there is no provision in federal law for amnesty of illegal arrivals, whenever they may have arrived. He is simply making a large, regular exception to a law that provides no legislative guidance on when it may not be enforced.
All presidents attempt to aggrandize power. Nixon insisted on the right to impound funds. Clinton held on to his privileged executive documents. Bush held on strongly to his war powers in the face of withering criticism. Obama too has kept GITMO in operation and ordered extra-judicial killings of al Qaeda members worldwide. Some of these powers, particularly the war powers, are long established and in the case of Bush and Obama authorized by the post-9/11 congressional authorization of force. But taking controversial issues that cannot get legislative support, like amnesty for illegals, and simply decreeing wholesale executive nonenforcement of democratically elected laws is borderline tyrannical. There is no limit to such powers, as not enforcing an immigration law is akin to making an entirely new law, as the whole law is defined by what it permits and what it forbids.
There may indeed be a case for certain compassionate amnesties for highly assimilated illegal aliens who were brought here at a young age by their parents, but any such law should face the normal checks and balances of tripartite government. We should all be concerned about extra-constitutional executive actions, even when we agree with the result, as the end result is an unaccountable government where the only bulwark of our liberties is the conscience and character of a single man.
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I wonder (and I don’t know the answer) what would happen to a civil servant who chose to enforce the immigration laws in the face of Presidential orders not to do so.
Would the administration have the power to fire that civil servant?