Ben Boychuk and Pia Lopez

Head to Head: Is Obama legitimately exercising his executive discretion, or abusing power?

Published: Thursday, Jun. 21, 2012 - 12:00 am | Page 15A
Last Modified: Thursday, Jun. 21, 2012 - 7:51 am

THE ISSUE: President Barack Obama announced his administration would halt deportation on a case-by-case basis of young people brought to the country illegally. Obama said that the plan is a "temporary, stop-gap measure" to better allocate law enforcement resources.

Is Obama legitimately exercising his executive discretion, or abusing power?

Ben Boychuk: Abusing

Happy policy ends do not justify dubious constitutional means. Yes, presidents enjoy wide latitude under the Constitution to do their jobs. But President Barack Obama overreached this time in a way that will be almost impossible to undo.

Obviously, law enforcement requires setting priorities. Without question, every government official from the president down to your local traffic cop should have some discretion with how they carry out their sworn duty to uphold the law.

But the president's immigration policy shift is different. Exempting nearly a million people from the nation's immigration laws is not merely an exercise in "prosecutorial discretion," as Homeland Security Secretary Janet Napolitano claimed in the memorandum outlining the change. It's tantamount to ignoring or rewriting the law.

We may well agree that the policy outcome here is the right one. It may be a good idea to establish some sort of clemency or "hard-case" board for children of illegal immigrants, especially those brought here when they were very young and who had no say in the matter. But such a major policy revision should be left for Congress to enact after due deliberation, not for the executive branch to implement through a departmental diktat.

Most press accounts of Obama's policy shift notehow it closely resembles a plan that Sen. Marco Rubio, R-Fla., has been touting in the U.S. Senate. Pia and I argued Rubio's alternative approach in an April 26 column. I thought Rubio's idea had merit, and wrote: "Republicans and conservatives might support a policy that addresses one facet of the illegal immigration problem – what to do about the kids? – without obviously undermining the principles of fairness, sovereignty and the rule of law."

Alas, Obama's initiative cuts off the rule of law at the knees.

The Constitution is fairly clear on this point: Congress, not the president, has the power to "establish an uniform Rule of Naturalization." That includes rules about who gets visas or reprieves from deportation proceedings.

Remember, too, Congress defeated the Democrats' version of the DREAM Act in 2010. The president might not have liked that outcome – Obama has repeated "We can't wait" so often, it's practically a mantra. But that's how our system works.

For his part, Mitt Romney won't say whether he would rescind Obama's new policy. And why would he? Romney might be sitting in the Oval Office this time next year. Every president dreams of enacting his agenda without congressional meddling. Americans, regardless of their political outlook, will rue this day.

Ben Boychuk is associate editor of the Manhattan Institute's City Journal. (

Pia Lopez: Proper

From city to county to state and federal levels, prosecutors have limited resources to enforce laws. Daily they exercise "prosecutorial discretion" in deciding which cases to pursue, wisely choosing to pursue the most serious ones – such as armed robbery over shoplifting.

They choose not to clog the system with low-priority cases involving individuals who pose little or no public safety threat.

This is smart, effective law enforcement policy.

That is what President Barack Obama announced last Friday in outlining principles of low-priority cases for immigration enforcement, so the nation can focus on terrorists, serious felons, gang members and repeat offenders.

It makes no sense whatsoever to deport Sacramento brothers like Chie Hong Yee Yang, who was valedictorian of his high school class and now attends community college, and Kawah Yee Yang, who just finished 10th grade with a 4.0 GPA. Their story was detailed Wednesday by The Bee's Stephen Magagnini. Brought to this country as young children by parents who overstayed their tourist visas, they were raised and schooled here and know only this country as home.

They now stand to get a two-year reprieve from deportation – and eligibility for temporary work permits. The aim of case-by-case basis prosecutorial discretion is to see that justice is done, to focus on what is the right thing to do in a particular case, to avoid inflicting needless harm.

Kids who are in school, have graduated from high school or have served in the military are an asset to this country. Brought here by their parents, just what crime did they commit?

The notion of deporting them not only is a waste of prosecutorial resources, it is unjust and even repugnant.

Obama's strategy is paying dividends. Deportations have increased from 165,168 in 2002, to a record 396,906 in 2011. The share with criminal records has increased from 30 percent in 2008 to 55 percent in 2011, improving public safety.

Ben believes Obama's shift in prosecutorial priorities is a "major policy revision" that should be left to Congress. But where is the policy revision? Nonenforcement action confers no rights, no immigration status, no pathway to citizenship. As the secretary of Homeland Security stated, "Only the Congress, acting through its legislative authority, can confer these rights."

Ben writes that "Congress defeated the Democrats' version of the DREAM Act in 2010." Not true. The DREAM Act passed the House in 2010. The measure never got an up-or-down Senate vote, because of a filibuster.

Congress still can and should act, and stop griping from the sidelines.

Pia Lopez is an editorial writer at The Bee.

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