Better in their words…

Hmm. Glad he told us.
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WSJ 4/18/2016

One reason American politics is so polarized is that President Obama has been so cavalier about his constitutional duty to faithfully execute the laws he dislikes. On Monday the Supreme Court will hear a challenge to one of his worst abuses, his 2014 order that rewrites U.S. immigration law.

In United States v. Texas, 26 states sued to block Mr. Obama’s executive diktat that awards legal status, work permits and other government benefits to some 4.3 million illegal immigrants, with no consent from Congress. A federal judge issued a preliminary injunction stopping this ukase last year, and the Fifth Circuit Court of Appeals agreed. Those were narrow rulings, but the Justices enlarged the case to reach constitutional questions and will hear an unusual 90 minutes of oral argument.

We support humane and economically rational immigration reform, but Texas isn’t about the policy merits. The case implicates the Constitution’s separation of powers and the basic precepts of self-government. The Anglo-American legal tradition began as the English rebelled in the late 1600s against the Stuart kings who claimed the power to suspend or dispense with laws passed by Parliament. The first two grievances against the Crown in America’s Declaration of Independence concerned such “Abuses and Usurpations.”

The Framers wrote Article II’s Take Care clause to prevent the President from claiming the same lawmaking powers. The executive shall— not “may”— execute Congress’s laws faithfully, in one of the Constitution’s most specific instructions.

Congress has debated a more generous immigration policy during the Obama years, and all the while Mr. Obama insisted he couldn’t act alone. “I am President. I am not king,” he told Univision in 2014. “I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.”

But reform failed, and two weeks after the 2014 midterm election Mr. Obama decided he could act like a legislature: “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing.” He has no such authority.

Under the order, aliens who satisfy certain criteria—such as having a child who is a citizen— will receive a “deferred deportation” certificate that nominally lasts for three years but in practice will last indefinitely. This dispensation classifies as “lawfully present” people whom the Immigration and Nationality Act defines as “unlawfully present,” and makes them eligible for social-welfare benefits. The Obama Administration claims this is nothing more than the routine exercise of prosecutorial discretion, as if it is merely conceding that immigration officers can’t hunt down the millions of illegals in the country. Better to use scarce resources to deport criminals or people who threaten public safety, move along.

Prosecutorial discretion is a vital legal concept. But such forbearance applies to individual prosecutors who make a judgment about the facts and circumstances of a particular case, such as the nature and seriousness of the offense. Discretion cannot justify a refusal to enforce the law for entire classes of people.

Even the Administration concedes in its brief that Mr. Obama created a “blanket policy,” not mere guidance to law enforcement. And a choice not to prosecute doesn’t typically come with a benefits package that includes Obama-Care and the Earned Income Tax Credit.

The Administration claims it can do whatever it pleases on immigration because of the Arizona v. U.S. precedent. In 2012 the High Court overturned a law that allowed state officers to arrest illegals for deportation because it “violates the principle that the removal process is entrusted to the discretion of the federal government.” The feds are supreme on immigration law—but only when Congress passes a statute. The Arizona ruling was not an openended grant for the executive branch to rewrite the law, but rather to look at “the equities of an individual case.”

The Texas court ruled, and the Fifth Circuit agreed, that the states have the “standing” to sue because they incur costs as a result of Mr. Obama’s order, such as the financial burden of issuing driver’s licenses to former illegals. But the more consequential damage is to democratic norms.

If Presidents can use “enforcement discretion” to suspend laws, the next one may choose to lower the capital gains rate by informing taxpayers the IRS won’t collect tax-evasion penalties over 15%. Environmental regulations could be ignored through a similar trick.

This should deeply trouble the liberal Justices as much as the conservatives. This case gives them an opportunity to reset the political system for the post-Obama era. His lawless integration of the executive and legislative functions deserves a rebuke before the practice becomes a permanent feature of U.S. politics.

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