Many Republicans are furious about reports that the president is considering executive action that would remove the threat of deportation for upward of 5 million immigrants in the US illegally. Announcement of such a move could come as early as next week, according to numerous news reports.
Given the level of anger, it was inevitable that some critics would start throwing around the “I” word. Rep. Joe Barton (R) of Texas said last week that it would be a “consideration.” On Fox News’ “The Kelly File” on Thursday, right-leaning commentator Charles Krauthammer said that Obama’s immigration order as outlined in the media would be “an impeachable offense.”
As Mr. Krauthammer noted, the legal basis for Obama’s move would be the ability of the executive branch to exercise discretion in the prosecution of crimes. That’s an accepted legal practice.
But in this case the order to exercise discretion, and not pursue immigration cases against millions of people otherwise subject to getting kicked out of the country, amounts to a unilateral rewriting of the law in question, according to Krauthammer.
Prosecutorial discretion is meant for a case or two at a time, he said on Fox. “It was never intended to abolish a whole class of people subject to a law and to essentially abolish whole sections of a law. And that’s exactly what’s happening here,” Krauthammer said.
Some legal experts don’t agree with that analysis. They say the executive branch has broad powers of prosecutorial discretion. The federal government’s law enforcement resources are limited and courts typically give the federal government wide latitude to decide the best way to deploy those resources.
In this case, the administration would be deferring action against the parents of children who are US citizens or legal residents. According to reports, the adults in question would have to have lived in the US at least five years to be eligible, thought that standard is not yet set in stone.
In essence, the White House would be putting these people at the bottom of the list of people eligible to be deported. There are some 11 million undocumented immigrants in the US. The Department of Homeland Security has the resources to deport only a few hundred thousand of those people annually. Somebody will be the on the bottom of the list; the question is how to decide that.
“As a legal matter, [Obama’s] discretion is really broad. As a political matter, I think it’s much more constrained,” University of California, Los Angeles law professor Hiroshi Motomura told Bloomberg Businessweek earlier this year.
That’s the crux of the impeachment matter. In impeachment proceedings, the House weighs whether a president has committed “treason, bribery, or other high crimes or misdemeanors,” in the words of the Constitution.
That’s as much a political decision as a legal one. There’s little consensus on what constitutes a “high crime” in this case. If the question is “Can the president be impeached over immigration?” the answer is “yes.” The House decides impeachment grounds.
The more relevant question, however, may be “Will the House impeach Obama over immigration?” The answer to that is almost certainly “no.”
The only GOP voices calling for impeachment are figures safe behind Fox News contracts, or fringe lawmakers. The majority of House and Senate Republicans think impeachment could quite possibly turn the country against their party. In July, House Speaker John Boehner ruled out impeaching Obama on grounds of general overreach of authority. Representative Boehner called impeachment talk “a scam” perpetuated by Democrats for their own ends.
The real fight here may not involve impeachment, but shutting down the government. Conservatives want the GOP to include provisions blocking Obama’s immigration actions on bills to fund the government.
Such a strategy would risk a White House veto, and another government shutdown. But most in the Republican leadership oppose such a move. For one, incoming Senate majority leader Mitch McConnell has said that’s not happening.
“We’re not shutting the government down or threatening to default on the national debt,” Senator McConnell said in the wake of the GOP’s big mid-term victories.
So what can the GOP do? No impeachment, no government shutdown – is every big gun off the table?
One possible strategy would be to give Democrats a view of the future, writes Allahpundit at the right-leaning Hot Air site. Hold a press conference and say that a future GOP president will gladly accept the precedent of Obama’s expansion of executive power – by using that power to unilaterally impose a flat income tax on America.
“Let’s make this threat . . . if only so that liberals know what’s in store for them down the road when they’re busy celebrating Obama’s authoritarianism next Friday,” writes Allahpundit.