November 19, 2014

Greg Sargent's Morning Plum points out that what Obama plans to do is legal, and even wingnut lawyers don't believe otherwise. The problem, of course, is that facts have nothing to do with the swelling tsunami of Republican outrage that will roll through our compliant media outlets:

With Republicans set to wage an epic showdown against President Obama’s expected executive action to shield millions from deportation — an action they claim will unleash Constitutional Armageddon — even members of one of the most influential conservative legal organizations in the country are now acknowledging his action is legal.

Sam Stein reports that senior lawyers at the annual convention of the Federalist Society entered into a spirited discussion in which panelists effectively acknowledged the President’s authority to act in this arena:

“I think the roots of prosecutorial discretion are extremely deep,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead an defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.”

Schroeder was speaking specifically about the deferred action program that Obama already has put into place — the one affecting so-called Dreamers who were brought to the U.S. as children. But later, Schroeder expanded his legal reasoning.

“I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution,” Schroeder said. “There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.”

[...] The idea that Congress created the statute that left the president with the authority to exercise broad enforcement discretion is also key. And at the Federalist Society convention, another legal scholar, one who agreed with Schroeder but also accused Obama of “destabilizing the republic,” added: “If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered.”

Translation: Congress effectively gave the president the authority to do what he is about to do; if Congress wants, it can move to take that authority away.

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