Taking Care, or Prosecutorial Indiscretion? President Obama's Immigration Action in Historical Context

Abstract

Though President Obama was reelected in 2012, Democrats lost the Senate and Republicans strengthened their majority in the House in the midterm election that followed in November 2014. Obama responded less than a month later with his magnum opus executive action to date, unilaterally lifting the threat of deportation from an estimated 5 million illegal immigrants living in the United States and granting them work privileges. Obama’s action set off a firefight over its legitimacy. Hecklers dubbed the president “King Obama,” and more thoughtful critics accused him of using executive fiat to circumvent laws he found distasteful and flouting his constitutional obligation to “take care that the laws are faithfully executed.” Defenders countered that the action was clearly (mostly) within his powers of prosecutorial discretion and that after all, Presidents Reagan and H.W. Bush made very similar orders without meeting threats of impeachment. Through the controversy, valuable historical guideposts are ignored, with most arguments reaching only as far back as Reagan’s order accompanying amnesty in the 1980s. One thing seems clear to this author: when only modern sources are consulted, the issue is clouded and heavily partisan. It often descends into altercations between (1) Republicans calling President Obama mean names based on vague references to somewhat ambiguous constitutional clauses and (2) Democrats finding support for his action in similar recent Republican presidential actions. In sum, the debate in popular media has all the authoritativeness and resolution of a political argument on Facebook.This Paper examines the controversy in light of relevant history, clarifying the validity of President Obama’s immigration action immensely. Part I explores a historical understanding of the Take Care Clause of the Constitution. Part II examines the changes wrought by executive actions through the years. Part III covers the controversy at hand and argues that flaws in Obama’s immigration action demand its invalidation.