Q&A: Obama's deportation order constitutional, technically
By Eric Heyl
Published: Saturday, June 23, 2012, 12:43 p.m.
Bruce Ledewitz is an internationally renowned Duquesne University law professor whose areas of expertise include constitutional law. Given the debate over President Obama unilaterally easing deportation rules for anywhere from 800,000 to 1 million illegal aliens in the United States, we sought out his expertise. His answers might surprise some.
The deportation changes allow illegals who arrived in the United States before they were 16 but are younger than 30, and who have been in the country for at least five years (among other provisions), to apply for a temporary work authorization and not face deportation.
Q: In your opinion, did the president overstep his constitutional authority with this policy change?
A: It's almost inconceivable to think of a court declaring what the president did unconstitutional. It's not clear who would have standing to challenge it. And it isn't clear that there is a specific enough policy by Congress that you could say the president is violating it. (But) I don't mean to suggest that he did the right thing. You're not asking me whether this is a good idea?
Q: No, I was asking more about the legality of the idea.
A: If you're asking technically if this was unconstitutional, I would say no. Now if you are saying all right, maybe technically nobody can go to court and get it declared unconstitutional, but doesn't it violate the spirit of the Constitution? That's a little more difficult to answer.
Q: Karl Rove said the Bush administration studied this issue extensively and felt that it didn't have the statutory authority to make a blanket (deportation) exemption without a specific change in the law. Shouldn't the president have called on Congress to enact such a law rather than issuing this fiat?
A: Nobody can dispute that would have been better. Our system is set up for Congress to make laws, not the president. On the other hand, the Bush administration did not carry out the (current deportation) law, either. They just didn't have an organized moratorium; they had an informal one.
Q: Is criticism that the president is flouting the separation of powers provision of the Constitution valid?
A: It's a valid concern. If you see this as the president not deciding where to put scarce (Department of Homeland Security) resources but instead saying, “I don't like the law, I can't get Congress to change it and therefore I'm not carrying it out” — now that's a violation of our system. It depends on which way you conceive of the policy.
Q: The president previously claimed he did not have the authority to make this change and now he's done exactly that in an election year. Do you think that the assertions that he did this to reap obvious political benefits are accurate?
A: I would hope that's not even an issue. I mean, I hope nobody would doubt that. It's obvious. Presidents do things for political reasons all the time. It does not make what he is doing right. It doesn't mean it can't violate the separation of powers. It just means that not every violation of the Constitution can be addressed in court. If you ask me if any court challenge would succeed here, I would say no.
Eric Heyl is a columnist for Trib Total Media. He can be reached at 412-320-7857 or email@example.com.
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