Is there a legal difference between a few thousand illegals amnestied and 5 million?

That's the argument being made by some "legal scholars" the White House has trotted out to justify the president's amnesty plan. As far as the law is concerned, they say, the numbers are irrelevant.

The Hill:

The group included three law professors from the University of Chicago — where the president taught constitutional law before his election — as well as Columbia University president Lee Bollinger, and renowned Harvard constitutional scholar Laurence Tribe.

“While we differ among ourselves on many issues relating to Presidential power and immigration policy, we are all of the view that these actions are lawful,” the professors write. “They are exercises of prosecutorial discretion that are consistent with governing law and with the policies that Congress has expressed in the statutes that it has enacted.”

Republicans have blasted the president’s moves, which would extend deportation relief and work permits to as many as 5 million illegal immigrants, as unlawful and unconstitutional.

“President Obama’s executive amnesty violates the laws Congress has passed in order to create and implement laws Congress has refused to pass,” Sen. Jeff Sessions (R-Ala.) said in a statement.

“This amnesty plan was rejected by the American people’s Congress,” Sessions continued. “By refusing to carry out the laws of the United States in order to make his own, the President is endangering our entire Constitutional order.”

But the law professors argue that the “setting of removal priorities and the use of deferred action” had been “used many times by the executive branch under presidents of both parties, and Congress has explicitly and implicitly endorsed their use.”

Separately, the Department of Justice on Thursday released the memo it prepared for the president on the legality of his proposed executive actions. 

The Justice Department concludes that the program, which will assist parents of U.S. citizens and permanent residents, would be “permissible exercises of [the Department of Homeland Security’s] discretion to enforce the immigration law.”

That memo also outlines why one plan under consideration but ultimately rejected — to offer benefits to the parents of children brought to the country illegally — would not pass legal muster.

What the scholars say is true - if we were to ignore the fact that previous uses of "prosecutorial discretion" was targeted, limited, and connected to a law passed by Congress. There is no adherence to "congressional intent" in issuing this order. Clearly, Congress never intended to hand the executive the power to amnesty 5 million people. That's a ridiculous argument and is based on politics, not the law. There simply is no precedent, no law ever passed by Congress that anticipated the scale of Obama's actions.

I'm not a Constitutional scholar, nor even a lawyer. But you and I can both read. Perhaps the most incredible aspect of the Constitution is that it was written not so that lawyers would only understand it, but so that ordinary people could easily grasp the concepts involved and understand their rights and the limits of government power.

If scholars can justify what Obama is doing as Constitutional, then our reading of what the Constitution says is no longer valid and the document itself has become irrelevant. The notion of a government of laws is at stake in this debate. And the threat from an executive who scoffs at limits on his power must be met and defeated if the idea of a government "of the people, by, the people, for the people" is to survive.


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