So is the trick just to be dishonest about one’s intentions? I’m not suggesting that is what Obama is doing, but just for the purposes of argument take the following two examples:
Ted Cruz said that God told him that anything higher than a 20% tax was immoral and he wouldn’t enforce it, Congress be damned!
Ted Cruz cites the shortage of personnel in the IRS and declares that he must “prioritize” enforcement of the income tax laws. In the spirit of dedicating resources “where they are needed” he declares that so long as a person has paid 20% of their income in taxes, enforcement of collecting the remaining tax, or prosecuting the taxpayer will be “low priority.”
You seem to be saying that #2 is okay, but #1 is right out. All that does is give a blueprint for the President to refuse to enforce laws he doesn’t like.
Anyone injured by the decision. That might include Congress simply as a matter of violating their statute, according to at least some courts. It would also include anyone injured by the enforcement policy–which would be easier or harder depending on the enforcement policy in question.
I’m not saying standing would be straightforward. The Rehnquist and Roberts courts have made a mess of standing because they generally don’t like plaintiffs. But that’s the bed they have to lie in, and it’s not fundamentally different from any other violation of a statute.
It doesn’t ever come to that, because the rule of law is strong enough in this country that executives do not ignore direct court orders, but the court could order contempt if an executive refused to follow an injunction.
Yes. But to have that as the law means that a president who really means #1 only has to say #2 to achieve the exact same result. So long as we don’t say out loud what we are really doing, we can act like a dictator. It seems to be a meaningless distinction.
ISTM pretty obvious that the notion that the impetus for this executive decision is solely the lack of enforcement resources is a blatant legal fiction. Obama has been pretty clear that he views giving legal status to many of the illegal immigrants to be a good idea on its own merits.
Yes. But he’s not doing that. What he’s doing is something more akin to decriminalizing illegal immigration for certain groups. They’re still not legal residents and they can still be prosecuted and deported.
I tend to agree, but I’m trying to be charitable and test the waters to see what role the courts should play in the “take care” clause. RNATB stated that intervention would be proper where the president openly flouts congressional intent.
My response to that was that I disagreed with it because it would simply encourage policy making to be done in the shadows by using vague terms about “prosecutorial discretion” and “resource allocation.”
I think that the courts need to do more that rely on the President’s words. When something happens like this, or my Cruz example, the courts need to see that for the policy making that it really is instead of giving full deference.
I could see deference in close cases or even not so close cases, but when a president actively lobbies for a certain law, it fails to pass Congress, then he enacts it through enforcement (or lack thereof) actions, then it just reeks of a dictatorial decree. It’s a dangerous precedent to set.
Not exactly… Crossing the border illegally is a crime, but simply existing here, without permission and papers, is not actually a crime. It isn’t “illegal” to be here. It’s actionable; you can be deported. But it is not “criminal.”
Actually, when I started this thread it was in part because of the current immigration case, but the idea was really from the implementation of the ACA. It seemed to me that the ACA required certain things like the employer mandate that were unilaterally delayed for what I thought were political reasons, in conflict with the law itself.
It’s things like this that I mostly had in mind. And there doesn’t seem to be any real consequences. Congress could have gone back and fixed parts of the ACA, but because that is unrealistic given the makeup of the current congress, Obama simply disregarded or delayed the requirements that were undesirable.
Well, what consequences did you want? To me, it is unrealistic to expect that the ACA rollout would happen on time given the various legal challenges, and you can’t very well blame the administration for that (though you can certainly blame the largely Democratic-controlled Congress that passed it).
If he makes a good faith effort to implement it but fails due to various legal challenges or other practical considerations, that’s not the subject of this thread.
But if he says “this feature of the law is increasingly becoming extremely unpopular, and this risks giving ammunition to opponents of the entire law, and my political opponents generally, so I’ll just waive this provision of the law”, that’s something else.
Some interesting developments ahead of an expected opinion later this month.
The original judge at the district level has just issued sanctions against the DOJ based on the fact that DOJ lawyers apparently lied during proceedings of this case. The DOJ has responded here.
The gist is that during the proceedings DOJ lawyers said that they were not in fact already engaging in the challenged conduct [Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)]. But the DOJ lawyers knew that this was not true and there were in fact deferrals already approved. Somewhere to the tune of 100K incidents.
The sanctions imposed by the judge are as follows:
[ul]
[li]DOJ must provide list of all 100K folks that were processed. The list to remain sealed until SCOTUS rules.[/li][li]Pro hac vice (ability for lawyer out of state to practice in state) status revoked for the counsel involved.[/li][li]Any D.C. based DOJ attorney who seeks to appear in any of the 26 states that is party to the suit must attend a legal ethics course.[/li][li]The Attorney General is required to appoint a person within the DOJ to oversee compliance[/li][li]The Attorney General is required to develop a comprehensive plan to prevent this type of unethical behavior in the future.[/li][/ul]
I think the last three of these overstep the authority of the district court judge. The pro hac vice status revocation is definitely okay. The list may be okay. The other three are hail marys. Volokh has commentary here.
