Immigration: Obama’s invalid suspension of the law is not exercise of prosecutorial discretion

Immigration: Obama’s invalid suspension of the law is not exercise of prosecutorial discretion

As some of you know, my employer, the Competitive Enterprise Institute, has supported some of the President’s immigration initiatives in the past, such as the deferral of deportation (and granting of work permits) for “Dreamers,” who were brought here through no fault of their own (and can provide cheap, useful labor for American business). Many of us (myself included) are either immigrants, or married to immigrants, and we generally like expanded immigration.

But the President’s upcoming proposal to grant a de facto amnesty to millions of undocumented immigrants (including work permits) is much more radical than that, and goes well beyond even his  broad powers under the nation’s immigration laws. It amounts to a wholesale suspension of the nation’s immigration laws, that violates the Constitution and breaches the Constitutional separation of powers. It is not simply an exercise of prosecutorial discretion, any more than a mountain is a molehill.

The Founding Fathers viewed executive suspensions of the law as one of the most insidious weapons of 17th century despotism, and Parliament deposed King James II in the Glorious Revolution in part for doing just that.

The President can’t simply suspend the law, even when the result might be felicitous from a policy vantage point. (Some of the lesser things he wants to do, such as expanding how the federal government issues specialty visas for high-tech workers, do seem harmless from a policy vantage point, and are less flagrantly illegal.)

Allowing millions of undocumented immigrants to stay (and obtain work permits) just because they have sired children while here illegally makes no legal sense, and is not something anticipated or intended by any of the Congresses that passed the nation’s immigration laws. Letting millions stay just because they have sired what is colloquially referred to as an “anchor baby” creates a gaping loophole in the law that Congress never intended, essentially repealing the law for anyone who chooses to take advantage of it (there’s nothing to suggest Congress wanted to reward that, or intended to spur an increase in the undocumented immigrant birthrate, through the immigration laws, however beneficial that might be in arresting a declining birthrate).

This action by the President will also harm people trying to immigrate or come to America legally, since the President is unlikely to charge the beneficiaries of this amnesty even the full cost of processing their applications for amnesty, resulting in massive delays for people trying to come here legally.  (The Dreamers were not charged even the full cost of processing their applications, leaving our broken immigration system with inadequate resources to process people trying to come here legally.)

This is perverse, since tourism, a $95 billion industry that creates many jobs in the U.S., is already being impeded by delays at the border and at consulates due to inadequate federal resources for processing tourists and visitors to the U.S.  The Obama administration’s policy of undercharging applicants for amnesty will leaves the government with adequate resources to handle tourists who bring money into our economy while costing nothing.  (Tourism is even more economically beneficial than immigration, since tourists don’t consumer much in the way of taxpayer-funded services, while generating tax revenue and creating tourism-related jobs).

Many would-be tourist visitors decide not to come to the U.S., because they have to wait hours to get in to the country at airports like Dulles due to inadequate staffing, or because they learn that U.S. consular officials overseas have arbitrarily denied other people their visas without explanation after they have already bought their plane ticket to the U.S. in order to qualify for their visa (as an obnoxious consular official Nice did to my French-born wife a quarter century ago, until she raised Cain about it.)

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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