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


Credit: White House /

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, 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."


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  1. Bo will come along to explain why Berenstein is a conservative and not a libertarian in 3… 2… 1…

    1. Bo makes interesting arguments sometimes and I think he talks past people a lot but he really has gone into full troll mode lately.

    2. Dammit, tarran. If you had only changed the last “e” to an “a,” I could have posted a silly joke about a certain bunch of sweet family bears!

  2. Apparently a bunch of the networks aren’t going to air the speech. So, naturally…

    How can networks “opt-out” of showing a Presidential speech when whatever he says affects 100% of the American people? This blatant disrespect needs to stop. We may need to boycott ALL of the major networks for this foolishness. I could not believe it when someone told me this over the phone this morning. I figured he had to be mistaken. Never in my life have I heard of a Presidential speech not taking top priority over anything AND everything on the air.

    1. Where did this come from?

      1. It popped on facebook.

    2. I saw something similar. Nobody gives a shit. He has spoken too often and for too long. Nobody believes that what he says is going to be historic or momentous. Its just going to be the telempromter-in-chief enjoying the sound of his own voice.

      1. el negro Abraham Lincoln

        -La Raza

      2. I looked on tvguide and the only channels that have that time slot specifically marked for a presidential address are Fox News and CSPAN.

    3. The networks are completely in the tank for Obama. So why would they not let the country hear dear leader speak? Do they think this is a huge mistake and just want the country to no pay any attention?

      1. Because it isn’t worth the lost revenue during the speech. There aren’t enough people tuning in for them to make it back up immediately before and after. They’ll have more viewers showing Maury reruns.

        1. This, he’s up against some of the network’s biggest shows.

    4. EVERYTHING on the air?

    5. Hello, it’s not 1974 anymore. There are plenty of outlets for the speech.

        1. Well its already tomorrow over there or something.

  3. I think this will ultimately hurt the cause for comprehensive immigration reform. Many Republicans are wrong on the issue, but this is not the correct way to deal with opposition.

  4. OT: Jim Webb on women in combat roles…..ant-fight/

    1. War on Warrior Women?

    2. That was awesome in an old timey way. I can’t even imagine the butt-hurt if a republican senator had wrote that and was currently in the senate.

      1. Gingrich made a similar argument in a speech in Congress. It was met with cries of “chicken hawk” and “sexist” of course.

        If combat means living in a ditch, females have biological problems staying in a ditch for thirty days because they get infections and they don’t have upper body strength. I mean, some do, but they’re relatively rare. On the other hand, men are basically little piglets, you drop them in the ditch, they roll around in it, doesn’t matter, you know. These things are very real. On the other hand, if combat means being on an Aegis-class cruiser managing the computer controls for twelve ships and their rockets, a female may be again dramatically better than a male who gets very, very frustrated sitting in a chair all the time because males are biologically driven to go out and hunt giraffes.

        The NYT, of course, went nuts:…..poked.html

        1. Hunt giraffes? I habn’t realized that Titties had gone insane that long ago.

  5. Will somebody, anybody, please describe in comprehensible English what they mean by “comprehensive immigration reform”?

    1. Amnesty, ala “The Immigration Reform and Control Act (IRCA), Pub.L. 99?603, 100 Stat. 3445, enacted November 6, 1986, also known as the Simpson-Mazzoli Act”

      1. Do you mean, just enforce Simpson-Mazzoli and go about our business?

        1. Well, they want the legalization part done again, and maybe snip out some of the enforcement part.

    2. Well, hell, it’s re-form! Everybody wants re-form!

      1. “Chicago ain’t ready for reform”

      2. We gotta get us some of that re-form!

  6. Thank God we have at least One True Libertarian, Shikha Dalmia, to make sure the correct end is reached, damn the means and the consequences!!!!

    1. Straw man, much

  7. The entire system is based on the President faithfully enforcing the laws. If the President is free to just not enforce a law, as opposed to not enforce a law in a particular case, then the President has a retroactive veto over the entire US Code.

    To say this is Constitutional requires one to be pedantic to the expense of the entire purpose of the document. No, the Constitution doesn’t say “the President is required to enforce the law” because the drafters didn’t think it had to say that. The entire system is built on that assumption.

    1. I wonder if that was the flaw Godel saw in the U.S. Constitution?

  8. I guess it depends on what, exactly, Obama’s EO will consist of. Anything within the scope of “probably” Constitutional action on the part of Obama will come nowhere near to advancing or being in keeping with comprehensive immigration reform. At best, it would provide a temporary reprieve lasting no longer than the Obama administration while generating ill-will towards immigration reform of a liberal sort. Anything more radical would almost certainly be un-Constitutional.

    1. I think you are right. The assumption is “they would never reverse this”. Bullshit they won’t. It will be reversed with a stroke of a pen and these people will be right back where they started. And they realize that. So it is not going to buy the Democrats much support from the Latino community, a large number of whom don’t even support open borders and it is going to engender a huge backlash against immigration in genera.

      1. Thing is, illegal immigrants aren’t stupid, and the ones who are make up for it with paranoia. They realize that deferred status does jack for them long term, and that the next president or even Obama himself could change that status at any time. I doubt that many would be willing to come out of the shadows and put their name and address on a government list in exchange for anything Obama could legally offer.

        1. That is a good point. They are basically signing up for a “future deportation list” if the powers that be ever decide to do so.

      2. This may very well become like the back-and-forth that happens with other politically-motivated EOs. For example, the Mexico City Policy banning federal funding for NGOs which perform abortions abroad is constantly overturned and reinstated by Democrats and Republicans, respectively. The difference is, EOs like the Mexico City Policy are not on issues integral to the operation of core government services; there in no sense in which the Mexico City Policy is necessary to making sure the government runs, nor anything which prevents private citizens from filling in the gap. Border policy is completely unlike this; if we have a situation where Ds and Rs are constantly overturning the legal channels of immigration we effectively have no border control and no border policy. I don’t see how that ends well for the Dems, or helps the libertarians achieve anything close to the type of reform they want since any immigrants will constantly be in legal limbo.

        1. if we have a situation where Ds and Rs are constantly overturning the legal channels of immigration we effectively have no border control and no border policy.

          See, also “open borders”.

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