The Presidential oath of office required by the United States Constitution in Article Two, Section One, Clause Eight:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
[emphasis added because in these times, it is needed]
Obama took this oath twice, and twice he affirmed this duty.
Barack Obama took this oath for the first time in January, 2009 and then said, “Transparency and the rule of law will be the touchstones of this presidency.”
Guess he had his fingers crossed, but he forgot to call “King’s ex.”
The trouble with Obama’s reliance on the doctrine of “prosecutorial discretion” is that his definition of prosecutorial discretion is completely out of whack with traditional notions of what that entails. Moreover, he is the President of the United States, he is not a prosecutor. The discretion afforded American prosecutors has traditionally been defended on the ground that it provides for case-by-case flexibility and ultimately more leniency for deserving defendants. But critics have traditionally argued that it has been abused with considerations of race, class and political affiliation.
Obama is acting on a broad spectrum of illegal immigration; he is not looking at individual cases and using discretion with respect to an individual person’s situation, as a real prosecutor would do. In essence, what Obama did last night was a legislative matter beyond his powers as president.
In addition to the Constitution itself, the relevant law on what Obama did last night is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), also commonly referred to as The Steel Seizure Case. It was a United States Supreme Court decision that limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article Two of the United States Constitution or statutory authority conferred on him by Congress. It was a “stinging rebuff” to President Harry Truman.
Youngstown Steel is taught in Constitutional Law classes in law schools. It is (or used to be) also covered in undergraduate political science courses for the proposition that the President is restricted to executive (i.e., non-legislative) functions in what he can do by himself but, when the President and Congress act together they have the combined executive and legislative powers of Articles II and III of the Constitution, limited only by Article I, Section 8 of the Constitution which sets forth the twenty-two enumerated powers of the Federal government.