Ilya Somin on Why Obama's Immigration Order Is Constitutional

President Obama’s recent order deferring the
deportation of up to 5 million undocumented immigrants has led to
enormous controversy. Many, especially on the political right,
argue that it undermines the rule of law. The president, they
contend, is required to enforce federal law as written, not pick
and choose which violators to go after and which to exempt based on
policy considerations.

In reality, writes George Mason University law professor Ilya
Somin, Obama’s actions were well within the scope of executive
authority under the Constitution. In a world where authorities can
prosecute only a small fraction of lawbreakers, all presidents
inevitably make policy choices about which violations of federal
law to prosecute and which to ignore. Such choices are inevitably
affected by policy preferences. Obama’s decision to defer
deportation is in line with those of past presidents. And if any
lawbreakers deserve to benefit from prosecutorial discretion,
immigrants fleeing Third World poverty and oppression have a
particularly strong case. Moreover, at least under the original
meaning of the Constitution, the constitutionality of the
immigration laws that Obama has chosen not to enforce in some
cases, is itself suspect.

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