Earlier this week, President Obama made it clear that he will soon offer some form of limited amnesty to about five million foreign nationals who are currently living illegally in the United States. He will do so by issuing an executive order to federal officials who oversee immigration directing them to undertake a course of action that, if complied with individually by all persons whom he designates as eligible, will cause the federal government to remove the threat of deportation from those who meet the standards he will lay down. Can he legally do that?
To address that question, we need to start with the principle that a presidential action may be lawful at the same time that it is unconstitutional, writes Andrew Napolitano. The president has the legal power to defer deportations. The power is called prosecutorial discretion. But if the president nullifies deportations on such a grand scale that the effect is the nullification of federal laws, notes Napolitano, then he has violated his oath to "faithfully" execute his presidential obligations.