Eric Posner: Obama Is Legally Allowed to Enforce—or Not Enforce—the Law

Obama Is Legally Allowed to Enforce—or Not Enforce—the Law
Eric Posner
The New Republic
August 8, 2014

Would President Barack Obama, by refusing to enforce the immigration laws against millions of undocumented immigrants, be engaging in “domestic Caesarism,” as Ross Douthat charges? The New York Times columnist thinks that “the granting of temporary legal status” violates the Constitution because Congress has itself refused to issue amnesties or offer a path to citizenship.

It’s not entirely clear what Obama plans to do, but if he chooses not to enforce immigration laws against “up to half the country’s population of illegal immigrants,” as Douthat claims, the president wouldn’t be doing anything different from what his predecessors have done (or rather, not done). 

Millions of illegal immigrants have lived in the United States for decades, under a semi-official policy that allows them to stay as long as they don’t commit serious crimes—and that, in many cases, allows them to obtain drivers’ licenses. The main effect of Obama's proposal would be to officially recognize current practice. The president cannot suspend or change the law: When he leaves office, the law will remain the same as it was, and the next president will be free to enforce it or not. 

Eric A. Posner