Though liberal supporters of President Obama may be spending the day celebrating his immigration executive order, they may come to regret it should a future Republican president use the same precedent to selectively enforce laws in a way that advances the conservative agenda.
The Washington Examiner spoke with a number of conservative legal experts who speculated about what a future Republican president might be able to do using a similar legal rationale to the one Obama is using to legalize millions of immigrants who are in the United States illegally.
“The president could say, ‘I am not going to prosecute anybody who claims on their tax returns only a 15 percent capital gains rate rather than the 28 percent maximum,'” John C. Eastman, the director of Chapman University’s Center for Constitutional Jurisprudence, said. “‘Not only am I not prosecuting, I’m going to give them a legal entitlement to pay a lower rate.’”
In theory, the same could hold true for the estate tax or the progressive income tax rates levied on higher earners.
David Rivkin, a constitutional litigator who served in the Department of Justice and White House Counsel’s Office under Presidents Ronald Reagan and George H. W. Bush, expanded on the political issues Obama’s legal precedent could affect.
“You can take any legislation: tax, financial regulation, worker safety, environment,” Rivkin said. “The president could say, ‘I don’t like that. Why not grant an exclusion to the Clean Water Act for oil companies?’ Companies would apply and the president could defend his actions by saying ‘The EPA can deny any application it wants, so it’s case-by-case prosecutorial discretion.'”
To defend the constitutionality of his executive order, Obama is claiming the right of prosecutorial discretion, which allows law enforcement to selectively enforce certain sections of legislation on a case-by-case basis. A simple example of prosecutorial discretion is speeding: everyone driving 63 mph in a 55 mph speed limit zone is breaking the law, but only some drivers are ticketed. It would be unfeasible to pull over every single lawbreaker.
The sticking point with Obama’s action is his claim that discretion is being used on a case-by-case basis, not an unconstitutional categorical basis as opponents argue. The executive order allows anyone who has been in the U.S. for five years, has children who are legal residents, passes a background check, and pays taxes to temporarily stay in the United States.
Allowing everyone who meets this criteria to stay makes the discretion more categorical than case-by-case.
“Obama has pushed prosecutorial discretion beyond individual cases to entire classes,” Eastman said. “And he’s pushed it further than anyone else has.”
Rivkin said of Obama’s actions, “This is a road map for total aggrandizement of executive power. It would be just as disingenuous, just as unconstitutional for a Republican to do this on other issues. But it would be no different.”
Obama himself has said in the past that he did not have the constitutional authority to act alone on immigration. In a 2013 interview with Telemundo, he said executive action on immigration would be “ignoring the law in a way that I think would be difficult to defend legally.”
As Obama said in his speech on Thursday, “Mass deportation would be both impossible and contrary to our character.” Ignoring the Constitution is also contrary to our character. Liberals should hope conservative successors to Obama take their oath to preserve the Constitution more seriously.
