Libertarian Law Prof: Obama Immigration Order 'Probably Not Illegal,' But Still Sets Bad Precedent on Executive Power


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Writing at the Volokh Conspiracy, libertarian George Mason University law professor David Bernstein makes the case against President Barack Obama's forthcoming unilateral executive action on immigration:

Immigration reform is one of the few issues on which I generally agree with the Obama Administration. And from what I can tell, it's probably not illegal or unconstitutional for President Obama to defer action on millions of immigrants, and then grant the adults work permits. Nevertheless, he shouldn't do it.

Previous presidents have had the same discretion under the immigration laws that Obama has. But no president had ever used his immigration discretion simply to evade Congressional opposition to his policies, nor to extend de facto legal status to so many people. It corrodes public respect for the legal system when the president uses loopholes to evade the normal legislative process and enact an extremely controversial, wide-ranging policy that Congress has rejected. And if President Obama can do this with regard to immigration, what's to stop future presidents, including conservative Republican presidents, from using similar tactics? Bad behavior by one president inevitably becomes precedent for bad behavior by future presidents.

Read the whole thing here.

Earlier today at Reason.com, Judge Andrew Napolitano made the case for why Obama's actions will violate the Constitution: "The American people, Congress and the courts need to know we have a president who will enforce the laws, whether he agrees with them in his heart or not. Without presidential fidelity to the rule of law, we have a king, not a president."

Back in August, Reason's Shikha Dalmia argued that Obama is fully justified in using executive power in this context: "Whether [conservatives] like it or not, existing immigration laws give the president vast discretion to temporarily legalize an unlimited number of foreigners."