DOJ Finds President Lacks Authority to Take Action He Took Next Day

The Secretary of Homeland Security and the Counsel to the President directed the Justice Department to investigate whether the president had the authority to take contemplated actions with regard to illegal immigrants via executive order. In a letter dated 19 November, they found he did not. On 20 November, he did it anyway.

Josh Gerson for POLITICO (“White House releases immigration legal opinion“):

The most interesting aspect of the legal advice President Barack Obama got on the immigration executive action he announced Thursday night may be what lawyers told the president he could not or should not do.

A 33-page Justice Department legal opinion made public just hours before Obama spoke concluded that he doesn’t have the legal authority to offer broad deportation relief to parents of so-called Dreamers—people who came to the U.S. illegally as children and won a reprieve from deportation in a program known as DACA that Obama created in 2012.

“As it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion,” Justice Department attorney  Karl Thompson wrote in the Office of Legal Counsel opinion.

The opinion also reveals, in a footnote, that Justice Department lawyers informally raised concerns about Obama’s initial 2012 DACA program before it was enacted.

Thompson’s legal memo about the new immigration initiatives warns the president against straying into areas untethered to policies or priorities Congress has set through legislation. “The Executive cannot, under the guides of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences,” Thompson wrote. “An agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”

A senior administration official said Thursday lawyers concluded that actions like protection for parents of dreamers were “not legally available” to the president, largely because it would be building one set of executive actions upon another.

On the one hand, kudos to the administration for promptly releasing the memo. The norm in situations where OLC presents adverse findings is to bury said findings for as long as possible. Releasing the full memo so quickly is the height of transparency and truly laudable.

It’s worth noting, too, that OLC—rightly in my view—found that the president does have the “authority to prioritize the removal of certain categories of aliens over others,” particularly in light of inadequate funding to pursue the removal of all of them. But they specifically found that “the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion” precisely because it is not tethered to existing law. Pages 6 and 7 detail what seems a perfectly reasonable understanding of the law:

[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. See id. at 833 (an agency may not “disregard legislative direction in the statutory scheme that [it] administers”). In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”); Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (explaining that where Congress has given an agency the power to administer a statutory scheme, a court will not vacate the agency’s decision about the proper administration of the statute unless, among other things, the agency ”‘has relied on factors which Congress had not intended it to consider'” (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).

Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, ”‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an agency had adopted such an extreme policy, “the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion'”). Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws. But see, e.g., Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) (noting that under the Take Care Clause, “the President is required to act in accordance with the laws—including the Constitution, which takes precedence over other forms of law”).

On the other hand, it’s more than a little troubling that the president proceeded to issue the order anyway, contrary to not only the wishes of Congress and public opinion but the best legal advice available to him. As Gerson notes, the administration is operating on a different legal view than the professionals in the Justice Department:

However, that conclusion appears to have been based heavily on historical precedent as well as legal concerns. Officials said they consider Obama’s move to allow family members of U.S. citizens to receive protection from deportation to be very similar to previous moves by Presidents Ronald Reagan and George H.W. Bush, who also protected family members of individuals Congress had moved to allow to remain in the country legally.

“We were influenced by the fact that Congress already recognized the relationship between child citizens and parents as a relationship Congress wants to protect,” said the senior official who spoke on condition of anonymity.. “This was a sort of implementation of that Congressional policy as opposed to the parents of Dreamers, which would be….slightly different…We thought it was important to tie it to a Congressional policy.”

The difference in the actions taken by Reagan and the elder Bush and that taken by Obama is that the former were implementing the clear intent of Congressional law, protecting those who had fallen into the cracks of the legislation. In this case, Obama is essentially passing the DREAM Act by executive fiat.

Despite my generally supporting the DREAM Act, I find that outrageous. Indeed, as noted in the comment thread of another post yesterday, I consider this action impeachable. Note that I’m not calling for the president’s impeachment. Aside from it being politically untenable, the fact that Obama’s action comes in the wake of decades of his predecessors stretching the Constitution beyond recognition makes it difficult to argue that the duly elected—twice—president should be removed from office for continuing a trend. But this is nonetheless serves as a further and rather substantial weakening of the separation of powers.

Another president will, in the not too distant future, use this precedent to justify an action that supporters of Obama’s move will find outrageous. At that point, it’ll be too late to complain.

read more here: http://www.outsidethebeltway.com/doj-finds-president-lacks-authorit...

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Cruz, Gowdy,someone please make a 'citizens arrest of o and start an end to all his evil intentions for all that is good in the world!!!!  

Well the King fell off the wall and all the kings men couldn't put him back on the wall. So now what is the next step to remove the clown in Office now! And what is next NoBiden, he's dumber then a rock! Bone Head Boehner is not far behind. If there ever was a time for prayer its now.
Mr. Peters,
You have just offended every clown from around the world sir. You should be ashamed !!

.

WHAT IS NEW WITH OBAMA? IT IS RACIST TO SUPPORT SOMEONE BECAUSE OF RACE INSTEAD OF WHAT ONE DOES! IF BUSH OR REAGAN DID MANY TREASONOUS ACTS THEY WOULD OF BEEN OUT IN LESS THAT A YEAR. IMAGINE REAGAN RELEASING THE 5 TOP TERRORIST PLANNERS FROM GITMO AND FOR A DESERTER WHO IS AS OBAMA, A MUSLIM! LIBERAL MEDIA WOULD HAVE CASTRATED THEM IN EVERY REPORT! WELL, MAYBE NOT SINCE THAT IS WHAT THE "TREASONOUS" LIBERAL MEDIA WOULD SUPPORT!

WHAT ABOUT BENGHAZI? WHAT WAS THE REAL TRUTH? DO YOU REMEMBER PAKISTAN SAID OBAMA WOULD MAKE A GREAT WORLD LEADER? IT WAS ON THE NEWS! SO WHAT DID HAPPEN? OBAMA ASKED THE CIA TO SEE WHAT IT WOULD TAKE TO GET THE LOCATION OF BIN LADEN AND THEY SENT BACK WHAT WAS ASKED! OBAMA AGREED AND A SEAL TEAM AND A CHRISTIAN AMBASSADOR WERE SACRIFICED. BIN LADEN WAS INFORMED OF THE DEAL BEFORE IT WAS MADE! HE AGREED AND DID NOT FLEE! SO WE GET AN UNPROTECTED CHOPPER SHOT DOWN AFTER THE "STAND DOWN" MURDERS IN BENGHAZI! IT WAS A DEAL BY OBAMA AND THUS KILLARY WOULD NOT ACT AND EVEN REFUSED SOME CALLS!

OF COURSE OBAMA OVERSTEPPED HIS AUTHORITY AS HE DID WITH THE RELEASE OF THE TERRORISTS AND THE GIVING OF THE DRUG CARTEL THOSE WEAPONS! WHEN DOES HE NOT DO EVIL?

H.R. 4435, as passed in the House

H.R. 4435, as passed in the House, received in the Senate, and placed on the Senate calendar (PCS):  

  • H.R. 4435 – Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (Placed on Calendar Senate - PCS) [PDF]

     

     

    But, again, this stands the Constitution on its head, arguing that the president can simply ignore large swaths of existing law unless Congress specifically passes a law—presumably, by a veto-proof supermajority—overturning his order.

     

    Dellinger and Lederman are right on the larger point that presidents have carved out enormous discretionary power over the years and that the courts have allowed much of that to slide. That’s why I ultimately don’t support impeachment here. But I nonetheless believe Obama’s order has further weakened our system of checks and balances and, indeed, the rule of law.

    U.S. CodeTitle 6Chapter 1Subchapter IVPart A › § 202

    6 U.S. Code § 202 - Responsibilities

    Current through Pub. L. 113-185. (See Public Laws for the current Congress.)

  • US Code

    The Secretary, acting through the Under Secretary for Border and Transportation Security, shall be responsible for the following:

    (1) Preventing the entry of terrorists and the instruments of terrorism into the United States.

    (2) Securing the borders, territorial waters, ports, terminals, waterways, and air, land, and sea transportation systems of the United States, including managing and coordinating those functions transferred to the Department at ports of entry.

    (3) Carrying out the immigration enforcement functions vested by statute in, or performed by, the Commissioner of Immigration and Naturalization (or any officer, employee, or component of the Immigration and Naturalization Service) immediately before the date on which the transfer of functions specified under section 251 of this title takes effect.

    (4) Establishing and administering rules, in accordance with section 236 of this title, governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States.

    (5) Establishing national immigration enforcement policies and priorities.

    (6) Except as provided in part C of this subchapter, administering the customs laws of the United States.

    (7) Conducting the inspection and related administrative functions of the Department of Agriculture transferred to the Secretary of Homeland Security under section 231 of this title.

    (8) In carrying out the foregoing responsibilities, ensuring the speedy, orderly, and efficient flow of lawful traffic and commerce.

    Source

    (Pub. L. 107–296, title IV, § 402,Nov. 25, 2002, 116 Stat. 2177.)

    References in Text

     

    Part C of this subchapter, referred to in par. (6), was in the original “subtitle C”, meaning subtitle C (§ 421 et seq.) of title IV of Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2182, which enacted part C (§ 231 et seq.) of this subchapter and amended sections 2279e and 2279f of Title 7, Agriculture, and sections 115, 44901, and 47106 of Title 49, Transportation. For complete classification of subtitle C to the Code, see Tables.

    The customs laws of the United States, referred to in par. (6), are classified generally to Title 19, Customs Duties.

I am in fear of the future.  Can't change what happening now, BUT perhaps should be putting energy into future.  I'm growing quite fond of Dennis Michael Lynch.  He did the "Coming to America" film.  Now is launching POTUS 2016.  Might want to check out. a href="http://www.DML2016.com>" target="_blank">www.DML2016.com>;     We NEED a Pres who honors the Constitution, Loves the Country & BELIEVES  in our excellance.  We are working toward a dictatorship quite rapidly, yet no one seems to notice.   God Bless America & America Bless God.

Skip, you were right on point about the need for prayer, like never before.  Roberta, I understand your frustration, and my head is spinning, trying to read all the legalize that's been posted. I agree that the emperor has overstepped the bounds of what is allowed the Executive Branch, by the Constitution. But, we've got a whole boatload of problems in this nation, like judges over-turning laws states have passed, against same-sex marriage.  The attack on our schools that have Christian pictures in them that have hung there for YEARS, trying to keep our children and grandchildren from praying in school, trying to stop students from forming Christian groups at school, and I could go on and on.  BUT, the main issue that has led us to this point is the failure of the Christians of this nation to get out and VOTE!!!  I've heard time after time, over the years, about how pastors would tell their congregations that they shouldn't vote!  That is just not so, and now we find ourselves in this horrible predicament, not knowing what problem to attack first, as there are so many that are shredding the Constitution.

May God have mercy on us!

Ann Odom

Impeach the Bastard already. He will do more of this Illegal Executive actions on anything he deems is "right", or "compassionate", if Congress doesn't act on his (orders). Like he said, "I have a pen & a phone." Shove them up his A__ !

OBUMMER DOES NOT GIVE A CHIT WHAT THE DOJ OR JUSTICE DEPT.

 HE WILL DO WHAT HE WANTS. IT IS TIME FOR CONGRESS

TO GET A BACK BONE AND DEFUND ALL IMMIGRANTE FREEBEES.

NO FREE FOOD STAMPS

NO DRIVERS LICENSE

NO  RENT   SUBSIDIES OF ANY KIND

NO FREE MEDICAL .MAKE THEM PAY OR JAIL THEM,

AND DEPORT ALL WHO CROSSED THE

BORDERS THE PAST 5 YEARTS.

And so says the emperor....! What an ass! Even disregarding the highest legal advice, he goes ahead and does exactly what HE wants to do, and DARES anyone to contradict him! That is the epitome of egotistical arrogance.

The problem with Odumbo is nobody reins him in!  He has been allowed all through his Presidency to get away with his crap. The second thing is The Clown. Nobody wants him as president with maybe a leg up for 2016 so they do nothing about impeaching O.

So due to the fact that BHO went against the advice of his own DOJ, one can only conclude that the man is (a) demented, and/or (b) a tyrant?  No to point (a).  For, one can also conclude that the man is operating to a clear and precise purpose.  That being: to attempt to 'push the envelope' into such a reaction to his highhandedness that his enemies will hand him the wherewithal to declare a 'national emergency' and its attendant Martial Law; which would, then, be his desired outcome,  

Neither he nor his Marxist comrades are dummies.  They saw the results of the 2014 elections.  They don't want to lose the fish that they have pretty much - slowly slowly - reeled in.  So the agenda would be to speed up the process, and get the Right in this country so riled up that they make a strategic mistake, and give Bre'r Rabbit precisely what he wants: to be thrown into the briar patch.  To say: for the socialist revolutionaries to be given the excuse to destroy the Constitution in one fell swoop.  Which is all that is standing in the way, not of just the far Left, but of TPTB behind even them - aka the Cabal - between them and victory: which to them is total subjugation of humanity, in their totalitarian, uber-surveillance-state New World Order.

So: what to do.  I would recommend a lightning strike, to avoid a piecemeal, word- and fist-slinging opposition approach, which would give the revolutionaries their 'briar patch'.  What would the former response look like?  To my mind, that would look like the Oathkeepers - current and retired, and including the Constitutional Sheriffs & Police Officers Assn. - doing a deal with the Secret Service to avoid bloodshed, and going in to the People's House and arresting the Usurper (anyway; another, though related, issue), and holding him for trial under a number of charges.  (Among them: authorizing a document to be posted on the official White House website that has proven, upon considerable investigation by experts in the field, to be a forgery.)  With a horde of Patriots having their backs in the operation, in (peacefully) surrounding the White House, until The Tyrant comes out in surrender.  And the officials of both major political parties being likewise arrested and held for trial, on RICO Statute charges, for colluding in the sitting of an ineligible president.  (For not being a bona fide "natural born" citizen.  As I say: another, albeit related, issue to that of this post.)  Which would include both Pelosi and Biden, for their obvious roles in the fraud.  And since that conspiring questions the legality of both political parties, that questions the legality of the recent elections.  So we have, then, a constitutional crisis, above and beyond the one that the Usurper has triggered by his most recent tyrannical moves.  So we have cause to move to a next stage of the constitutional prerogatives in such circumstances; which is for The People to appoint an Officer OF The People to clean up the whole stinking Augean-stables mess, and start fresh and new.             

But then, that's just me.        

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