Arkady
President
Set aside, for purposes of this thread, the question of whether Obama's quasi-Dream Act move is good policy and good politics. I'm just curious what people think about HOW it was done. Essentially, a policy matter that should normally be expected to be handled by law has instead been handled by executive discretion, with a decision to selectively not enforce a law that's on the books.
I'll stipulate off the bat that any executive has to make decisions about priorities. With limited resources for investigation and prosecution, the president or Attorney General or other administration officials will need to make decisions about how to allocate those resources -- e.g., not prosecuting most minor drug possession cases, on the theory that the same resources can do more good if they're used to go after, say, murderers. But, in this case, the decision clearly had less to do with allocation of resources than with an opinion that the law should say something other than what it says... it's essentially a nullification of the law, through non-enforcement, where any saving of resources is a nice side-effect, rather than the real motivation.
So, what do people here think of the appropriateness of a president choosing not to enforce a law simply because he doesn't like what it says? As much as I like the end result, I dislike the idea of the president picking and choosing which laws get enforced. It just seems too easy for him to abuse that power. If you're a liberal who is having trouble seeing past the virtuous setting of this particular use of discretion, try to re-imagine it in the form of a Republican president announcing a plan not to enforce a law you agree with, because he doesn't approve of the law.
Here's a hypothetical example. Let's say a future liberal Congress enacts carbon credit trading rules, against Republican opposition. Like any pollution controls, enforcement is needed. No business is going to bother to buy carbon credits if it knows there's no price to be paid for simply emitting CO2 without the credits. What if the Republican president announces that the law simply won't be enforced? Or what if the president announced that he thinks minimum wages are bad for the economy, so the administration will no longer enforce minimum wages. Or the president thinks labor unions are bad for workers, so he announces that his administration will no longer prosecute businesses that fire workers for organizing? Or maybe he thinks a person should be able to do anything he wants with a company he owns, so he decides his Justice Department will turn a blind eye to any non-public company discriminating on the basis of race, gender, and religion.
Doesn't this completely undermine our system of checks and balances? At least with a real veto, there's the Constitutional possibility of a veto override. But if the president vetoes, then Congress overrides, and the administration simply announces it's going to ignore that law, what can Congress do about that? It's like saying that there is no law other than whatever laws the president thinks should exist. It's very nearly a dictatorship.
We have another recent example of this kind of politically-motivated selective prosecution. As we all know, the Bush administration ordered human beings to be tortured. They've admitted to the waterboarding, and there's no HONEST question that waterboarding is torture -- it has long been treated as such internationally, and waterboarders have been prosecuted for their war crimes. There's only a fake question about whether it's torture because that uncertainty had to be invented as soon as it became clear it was official administration policy to have people waterboarded. Regardless of labels, there are laws on the books outlawing the practice in the US, and people in the US who have been tried, convicted, and jailed for waterboarding prisoners, before Bush made it official policy. Bush's action was, clearly, a crime. Yet, Obama announced that nobody in the Bush administration would face justice for any of those acts. It was the same kind of nullification of the law, for political reasons, as deciding not to enforce immigration laws against certain classes of immigrants.
Yet another example would be the Obama administration decision not to prosecute anyone in the Bush administration for illegally spying on Americans. Under the FISA law, as it existed at the time, it was illegal to conduct electronic surveillance on US persons without a warrant (which could, in certain circumstances, be obtained retroactively). The Bush administration, unquestionably, decided to break that law. Each count of doing so was, by the terms of the duly-enacted law they were defying, a felony. Obama decided, for political reasons, that he'd nullify that law, by simply refusing to enforce it.
So, is this really the country we want? Do we really want a system of laws that only have meaning if the president happens to think they ought to have meaning? Do we want a system where even if two houses of Congress pass a bill, and the president signs it, and the courts uphold it, it still doesn't actually have the force of law other than at the individual personal discretion of the president? As much as I may appreciate the political and policy RESULT of that discretion in a particular case, I cannot tolerate the method. The president can rightly set priorities about where we can get the most "bang for our buck" in prosecution and policing, but deciding not to enforce a law at all, for POLITICAL REASONS, is just not something we should allow. Efficient allocation of resources, yes, but ex post facto vetoes, no. If you accept it in this case, just think of all the ways the same precedent could allow a president to undermine our system of laws in other ways.
I'll stipulate off the bat that any executive has to make decisions about priorities. With limited resources for investigation and prosecution, the president or Attorney General or other administration officials will need to make decisions about how to allocate those resources -- e.g., not prosecuting most minor drug possession cases, on the theory that the same resources can do more good if they're used to go after, say, murderers. But, in this case, the decision clearly had less to do with allocation of resources than with an opinion that the law should say something other than what it says... it's essentially a nullification of the law, through non-enforcement, where any saving of resources is a nice side-effect, rather than the real motivation.
So, what do people here think of the appropriateness of a president choosing not to enforce a law simply because he doesn't like what it says? As much as I like the end result, I dislike the idea of the president picking and choosing which laws get enforced. It just seems too easy for him to abuse that power. If you're a liberal who is having trouble seeing past the virtuous setting of this particular use of discretion, try to re-imagine it in the form of a Republican president announcing a plan not to enforce a law you agree with, because he doesn't approve of the law.
Here's a hypothetical example. Let's say a future liberal Congress enacts carbon credit trading rules, against Republican opposition. Like any pollution controls, enforcement is needed. No business is going to bother to buy carbon credits if it knows there's no price to be paid for simply emitting CO2 without the credits. What if the Republican president announces that the law simply won't be enforced? Or what if the president announced that he thinks minimum wages are bad for the economy, so the administration will no longer enforce minimum wages. Or the president thinks labor unions are bad for workers, so he announces that his administration will no longer prosecute businesses that fire workers for organizing? Or maybe he thinks a person should be able to do anything he wants with a company he owns, so he decides his Justice Department will turn a blind eye to any non-public company discriminating on the basis of race, gender, and religion.
Doesn't this completely undermine our system of checks and balances? At least with a real veto, there's the Constitutional possibility of a veto override. But if the president vetoes, then Congress overrides, and the administration simply announces it's going to ignore that law, what can Congress do about that? It's like saying that there is no law other than whatever laws the president thinks should exist. It's very nearly a dictatorship.
We have another recent example of this kind of politically-motivated selective prosecution. As we all know, the Bush administration ordered human beings to be tortured. They've admitted to the waterboarding, and there's no HONEST question that waterboarding is torture -- it has long been treated as such internationally, and waterboarders have been prosecuted for their war crimes. There's only a fake question about whether it's torture because that uncertainty had to be invented as soon as it became clear it was official administration policy to have people waterboarded. Regardless of labels, there are laws on the books outlawing the practice in the US, and people in the US who have been tried, convicted, and jailed for waterboarding prisoners, before Bush made it official policy. Bush's action was, clearly, a crime. Yet, Obama announced that nobody in the Bush administration would face justice for any of those acts. It was the same kind of nullification of the law, for political reasons, as deciding not to enforce immigration laws against certain classes of immigrants.
Yet another example would be the Obama administration decision not to prosecute anyone in the Bush administration for illegally spying on Americans. Under the FISA law, as it existed at the time, it was illegal to conduct electronic surveillance on US persons without a warrant (which could, in certain circumstances, be obtained retroactively). The Bush administration, unquestionably, decided to break that law. Each count of doing so was, by the terms of the duly-enacted law they were defying, a felony. Obama decided, for political reasons, that he'd nullify that law, by simply refusing to enforce it.
So, is this really the country we want? Do we really want a system of laws that only have meaning if the president happens to think they ought to have meaning? Do we want a system where even if two houses of Congress pass a bill, and the president signs it, and the courts uphold it, it still doesn't actually have the force of law other than at the individual personal discretion of the president? As much as I may appreciate the political and policy RESULT of that discretion in a particular case, I cannot tolerate the method. The president can rightly set priorities about where we can get the most "bang for our buck" in prosecution and policing, but deciding not to enforce a law at all, for POLITICAL REASONS, is just not something we should allow. Efficient allocation of resources, yes, but ex post facto vetoes, no. If you accept it in this case, just think of all the ways the same precedent could allow a president to undermine our system of laws in other ways.
