I think the Constitutionality of a law is merely justification on what Congress can use to impeach the president. The real answer is probably “if Congress can justify it, then the president can be impeached by it”. So far, with regards to the OP, Congress has not been able or willing to impeach him, therefore by definition, Obama is allowed to do those things like delay implementation of the ACA or modify deportation criteria.
I could say it was obvious and illegal that GWB waged and illegal war on lies and deceit, but illegality is contingent on Congress challenging him. There wasn’t enough votes to impeach, so what he did wasn’t illegal by definition. Future presidents will be able to use the same thing to justify torture and war
Yeah, but impeachment can’t be the only remedy to rein in a rogue President. Otherwise, why even define his power in the first place? he can just do whatever he wants as long as he doesn’t get impeached. No, that’s banana republic shit.
That’s why the courts need to be willing to get involved. They already did in the case of funds impoundment. Nixon tried to not spend money Congress had appropriated and a court said he couldn’t do that. Then Congress simply passed a law stating the President couldn’t do that, and impoundment came to an end, despite having a 200 year history up to that point.
Much as impoundment ended due to Nixon’s extreme misuse of the procedure, we need to limit the President’s ability to choose not to enforce laws. The court decision on the immigration program is the first step, a new Act of Congress that we could call the Faithful Execution Act could specify that Presidents only have prosecutorial discretion where resources are limited and that this discretion does not extend to actively licensing lawbreaking.
As a matter of fact, the impoundment issue and Obama’s immigration plan are very similar, since Obama is effectively saying he won’t appropriate the enforcement money he’s been given. He’s technically spending it, but purposely trying to give the taxpayer less bang for the buck by seeking to reduce the total number of deportations substantially. It would be like Nixon saying, “Okay, I’ll spend all $5 billion for the F-16 fighter, but I’ll only buy 1 plane for that $5 billion”.
This is why many people are really freaked out at Trump’s recent personal attacks on a judge.
It’s not difficult to imagine Trump simply ignoring a judge’s orders as President, saying they are illegitimate because the judge is secretly a Mexican (or Muslim…or, hey, let’s go Jew!) or whatever other crazy excuse he makes up.
Of course it would require Congress to impeach the President to enforce a court order; the President is head of the Executive branch, including all federal law enforcement agencies and the Attorney General. If they have his back, who ya gonna’ call?
(In real life practical terms a president who wasn’t a complete imbecile would read the writing on the wall if it actually got that far).
But that means that any president whose party controls more than 1/3 of the Senate can effectively ignore the laws in favor of whatever is in line with his party’s ideology.
Only if that 1/3 goes along with the President’s law breaking.
Personal attacks against a judge is not nearly the same thing as attacking the rule of law. Just like calling a musician a jackass isn’t at attack on free speech.
Whereas the action in question by the Obama administration is actually being litigated so there is a question as to the constitutionality, and the DOJ lawyers clearly acted unethically in their arguing of the case - this is a question of reality vs. a future hypothetical.
So the more interesting question of “faithfully execute” goes unanswered. Disappointing but not surprising. I was thinking the court would find a way to delay until the next term but I’m not even sure there is a mechanism for that.