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Jun 27 2012

Somin Answers Yoo on Obama Immigration Policy

Ilya Somin, a libertarian law professor and often a critic of President Obama, agrees completely with his new immigration policy of not deporting those who were brought here as children. And he takes on John Yoo and other partisan hacks for their unjustified objections to it:

This reform strikes me as a major step in the right direction. It allows some 800,000 people to live their lives in peace without the fear of being deported to a life of poverty and oppression in the Third World. It strikes a blow against the grave injustice of current immigration restrictions. All the standard objections to illegal immigration don’t apply here. For example, critics cannot argue that we letting guilty people off the hook here, since these individuals came to the US as children and were not legally responsible for their actions at the time. Similarly, it is unlikely that these people will become burdens on the welfare state, given their educational credentials. In any event, increased immigration tends to reduce political support for welfare spending rather than raise it

Some critics, such as John Yoo and Arnold Kling, attack the president’s decision not on the merits, but on the grounds that he lacks legal authority to choose not to enforce the law in this case.

This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States all have reason to be grateful for this restraint.

Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Finally, Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

Yoo’s arguments are bad because he doesn’t really mean them. No one is a bigger advocate of executive power than Yoo and if this was a Republican, he’d be leading the standing ovation. It’s pure partisan nonsense.

9 comments

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  1. 1
    John Hinkle

    I bet Yoo and Yoo’s guys have that bumper sticker on their car: Nobama.

  2. 2
    Marcus Ranum

    John Yoo shows his face in public? Ick.

  3. 3
    acroyear

    As I said on previous discussions here, the ultimate Constitutional justification for not enforcing a particular law is the Executive Pardon. The practice of limited enforcement merely takes a layer of ceremony off of that process, but the pardon in effect remains.

  4. 4
    Modusoperandi

    The only solution I can see is to waterboard Yoo to see what he really thinks. Then do it again until he thinks the opposite. Then do it again until…

  5. 5
    Tualha

    Ed sez:

    Yoo’s arguments are bad because he doesn’t really mean them. No one is a bigger advocate of executive power than Yoo and if this was a Republican, he’d be leading the standing ovation. It’s pure partisan nonsense.

    Argumentum ad Bulver. Yoo’s arguments are bad because they contradict the facts. His motives are irrelevant.

  6. 6
    barkdog

    I agree with Sonim’s attitude, and grant the he has far greater expertise in constitutional law than I do (which is an understatement if ever there was one), but this reminds me a bit of Nixon’s notorious dectrine of impoundment (the President does not have to spend money that Congress has appropriated if he does not approve of the policy), and of course James II was run out of England in the Glorious Revolution for refusing to enforce anti-Catholic legislation passed by Parliament. It seems to me that this is ultimately a political rather than strictly legal question, and the outcome depends on who has the stronger cards to play.

  7. 7
    dingojack

    ‘Somin enchancted evening, Yoo will meet a stranger…’
    :) Dingo

  8. 8
    oranje

    Now I have Harry Shearer’s song “Who is Yoo?” stuck in my head. Great.

  9. 9
    d cwilson

    Yoo’s arguments are bad because they contradict the facts. His motives are irrelevant.

    But they do show what a raging hypocrite he is.

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