Morning Plum: Federalist Society panel says action on deportations is legal
By Greg Sargent November 19
Sam Stein reports that senior lawyers at the annual convention of the Federalist Society entered into a spirited discussion in which panelists effectively acknowledged the President’s authority to act in this arena:
“I think the roots of prosecutorial discretion are extremely deep,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead an defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.”
Schroeder was speaking specifically about the deferred action program that Obama already has put into place — the one affecting so-called Dreamers who were brought to the U.S. as children. But later, Schroeder expanded his legal reasoning.
“I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution,” Schroeder said. “There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.”Schroeder is not a conservative, but Stein reports that other panelists “by and large” agreed with his points.
HuffPo quotes two Federalist members who are conservative:
“I’m not disagreeing with you [Schroeder],” chimed in John Baker Jr. midway through Schroeder’s remark. Baker, a visiting professor at Georgetown University Law Center, had earlier accused the Obama administration of having, “as its purpose,” the goal of “destabilizing the republic.” But he also made the case that the way to stop a president this hell-bent on destruction was neither through lawsuits nor impeachment. It's through cleaner legislative language.
...Neal Devins, director of the election law program at the College of William & Mary, offered a similar-sounding conclusion.
“I do not think the executive is subordinate to the judiciary, and if the executive is not subordinate to the judiciary and has the power to independently interpret the Constitution, it can’t be exercised only at the veto point when a prior president may have signed the bill,” Devins said. “The president who inherits the bill has to have the opportunity to interpret it himself and not be bound by the prior administration. The idea that the prior administration can tie the hands of a subsequent administration doesn’t make sense to me.”