Obama: I “probably” can’t grant amnesty on my own

posted at 10:01 am on July 17, 2013 by Ed Morrissey

Is this the analysis of a constitutional law scholar? Or of a President who’s managed to get away with encroaching on legislative jurisdiction to the point of dictating the meaning of “in session”? Univision asked whether Barack Obama can bypass Congress and the courts and just declare illegal immigrants legal by executive order.  Obama replies, “Probably not”:

President Obama said in an interview with Univision airing Tuesday that he “probably” cannot legalize illegal immigrants by executive order — a decision he might be faced with if Congress fails to pass comprehensive immigration reform.

“Probably not,” Obama said, according to a transcript. “I think that it is very important for us to recognize that the way to solve this problem has to be legislative. I can do some things and have done some things that make a difference in the lives of people by determining how our enforcement should focus.” …

Obama noted his deportations have focused on criminals and that he has signed an executive order exempting young illegal immigrants from deportation.

Actually, that hasn’t been fully challenged yet, but it arguably falls into the area of prosecutorial discretion, not legalization.  The executive order tells the executive branch to focus its enforcement and deportation efforts solely on those illegal immigrants who commit more crimes within the US, and not the minors without any other criminal activity.  That edges up to a refusal to enforce statutory law — which Obama has expressly announced with the delayed employer mandate in ObamaCare — but the discretion area is sufficiently gray that a court probably wouldn’t interfere in that decision, chalking it up as a political rather than legal issue.  (The courts took a similar view in striking down the controversial parts of Arizona’s immigration-enforcement law.)

Executive orders only impact the executive branch.  Granted, that’s a wide area of regulatory turf, but EOs cannot negate statutory law.  Illegal immigrants are illegal because they violated that statutory law by either crossing a border without permission or by overstaying their visas.  In order to grant them legal status within the US, Congress has to pass a statute creating that exception.  That’s true even for those whom the Obama administration refuses to deport; they’re still illegal immigrants, albeit in a limbo status.  If Obama issued an EO stopping all deportations, that wouldn’t change the legal status of anyone in this country, and it might force courts to instruct the White House that it can’t refuse to do its job.

Obama then explains that Congress has to provide a solution, but that it better have a path to citizenship built into it:

“But this is a problem that needs to be fixed legislatively,” he said. “So I’m not going to speculate on the House bill failing. I’m going to make sure that I do everything I can to help it succeed.”

Obama said he remains “cautiously optimistic” that Congress will come to an agreement, and he said any agreement should include a path to citizenship, not mere legalization.

That’s standard negotiation, of course, and standard constitutional process.  Probably.

Update: A intriguing question from Twitter:

I don’t believe Presidents can pardon people without them first being charged, at the very least, with a federal crime.  Blanket pardons of millions of people would probably get challenged and overturned in federal court as an unconstitutional end run around Congress.  It’s difficult to answer, though, because no President has ever contemplated doing it, including Obama. Probably.


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Correct. That damned second amendment again.

DeweyWins on July 17, 2013 at 10:03 AM

Hasn’t stopped him in the past from basically doing whatever the blank he wants.

Red Cloud on July 17, 2013 at 10:03 AM

OT: Did I miss the TM gay rape thread? The most important evidence in the GZ saga, and no mention of it?

faraway on July 17, 2013 at 10:05 AM

The fact that he’s gone from lamenting before the 2012 election that he couldn’t unilaterally do it to now saying he “probably can’t” is a little disconcerting.

Doughboy on July 17, 2013 at 10:06 AM

I think he should probably STFU.

Chris of Rights on July 17, 2013 at 10:06 AM

Born in Hawaii?

Probably not.

fogw on July 17, 2013 at 10:07 AM

“Probably not.

Probable. Probability.

Essentially there is a possibility.

coldwarrior on July 17, 2013 at 10:07 AM

A competent president? Probably not.

kingsjester on July 17, 2013 at 10:09 AM

Ever notice that every Dem the media put up on a pedestal invariably fall well short of the hype? Hillary was ‘the smartest woman in the world’, while Obama is a ‘Constitutional scholar’.

I don’t know who’s crazier: The media who manufacture them; they who are so honored for believing the hype; or the people who vote for them.

Liam on July 17, 2013 at 10:14 AM

I can refuse to enforce laws I don’t agree with though…just watch me – Obama

workingclass artist on July 17, 2013 at 10:15 AM

And who’s going to stop him if he does??

The DOJ only enforces the laws Holder wants enforced. Suck it up, cr***ers.

America, RIP.

TerryW on July 17, 2013 at 10:15 AM

Blanket pardons of millions of people would probably get challenged and overturned in federal court as an unconstitutional end run around Congress.

The pardon thing was my first thought too. But as a practical matter, any court challenge would take a couple years (I’m guessing). By that point it’s a fait accompli.

Fenris on July 17, 2013 at 10:17 AM

Sure Champ, you can do whatever you want.

NOMOBO on July 17, 2013 at 10:18 AM

Was Nixon charged with a “crime” before he was pardoned by Ford? I don’t believe so. The blanket pardon seems pretty suspect to me too, though.

wisconsin on July 17, 2013 at 10:18 AM

Translation: if I could figure out how to do it, it would already be done.

ORconservative on July 17, 2013 at 10:19 AM

@EdMorrissey in theory couldn’t president issue blanket pardon for violators of immigration law or would it have to be specific individuals?

Good grief, don’t give them any ideas they haven’t already thought of.

Bitter Clinger on July 17, 2013 at 10:20 AM

Harvard Law Review.

Flange on July 17, 2013 at 10:22 AM

Obama: I’m probably a Constitutional scholar …

ShainS on July 17, 2013 at 10:23 AM

He invented the DREAM program. He can invent amnesty. This is what happens when a president* knows he is immune from impeachment.

slickwillie2001 on July 17, 2013 at 10:23 AM

I don’t know who’s crazier: The media who manufacture them; they who are so honored for believing the hype; or the people who vote for them.

Liam on July 17, 2013 at 10:14 AM

That’s easy. The people who vote for them. The media and “they who are so honored for believing the hype” have a plan. The people who vote for those exalted are just plain dupes.

Bitter Clinger on July 17, 2013 at 10:23 AM

Also, Ford issued a blanket pardon to all Vietnam draft dodgers….I suppose this isn’t that much different. Terrible idea, though.

wisconsin on July 17, 2013 at 10:24 AM

Sorry, Carter, not Ford.

wisconsin on July 17, 2013 at 10:25 AM

Now having said this, IF Congress passes a bill that include both border enforcement and a path to citizenship, isn’t it obvious that the REB would simply ignore the border enforcement part?

We can’t deal with this jackass. The least-worst thing the Republicans in Congress can do is lock it down so nothing passes until 2016.

slickwillie2001 on July 17, 2013 at 10:25 AM

And he probably can’t “delay” ObamaCare on his own, but nobody is stopping him.

oldroy on July 17, 2013 at 10:26 AM

This detention center just closed in Texas due to not enough illegal inmates.The article says due to budget cuts but the truth is they have stopped detaining.
http://www.kwtx.com/ourtown/communities/groesbeck/headlines/Jail-Employees-Notified-Jobs-In-Limbo-Come-May-199385821.html

docflash on July 17, 2013 at 10:26 AM

I doubt that he could issue a blanket pardon–I believe pardons have to have specific names attached to them. But wisconsin is correct about Nixon. He was never criminally charged with anything (he actually was never impeached either, since he resigned before the full House could act), yet Ford short-circuited the process by pardoning him. Here’s text pertinent text of Ford’s pardon:

As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.

Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

Athanasius on July 17, 2013 at 10:28 AM

“I ‘probably’ can’t run for a third term either.”

MaiDee on July 17, 2013 at 10:30 AM

Whenever The One says “I probably can’t” or “I’m not going to” it means

I’m right, I have the power, I’m going to use it, now STFD and STFU.

By the time a legal challenge gets through the courts (with The one’s DOJ obstructing it every inch of the way), we will have enough “undocumented voters” to make sure the Dems win big in the 2014 election.

Which is the goal. Followed by the Democrats becoming the PRI (Partido Revolucionario Institucional)of the United States;

The Institutional Revolutionary Party is described by some scholars as a “state party”, a term which captures both the non-competitive history and character of the party itself, and the inextricable connection between the party and the Mexican nation-state for much of the 20th century. Institutionalism in Mexico is a concept that is based in the non-morphological character of consolidated human organizations, having the particular feature of belonging to its determinated legal field and settled as the highest manifestation of social common issues, as well as people use to go in and outside the objective legal field. In its origins, it was determined that institutionalism would be the only way to solve social problems as humans establish their differences and common similarities. The PRI held power for 71 years and the current president of Mexico, Enrique Pena Nieto is a member of the PRI.

https://en.wikipedia.org/wiki/Institutional_Revolutionary_Party

Anyone who thinks the Democrats in general, or The One in particular, intend anything less, hasn’t been paying attention.

clear ether

eon

eon on July 17, 2013 at 10:31 AM

Also, Ford Carter issued a blanket pardon to all Vietnam draft dodgers….I suppose this isn’t that much different. Terrible idea, though.

wisconsin on July 17, 2013 at 10:24 AM

I don’t think that was a pardon. Instead I think it was an amnesty, a declaration that offenders would not be prosecuted for any crimes they may have committed (a pardon is supposed to be an after-indictment or conviction act, but again, Nixon).

Either way, it doesn’t bode well, given Obama’s penchant for doing whatever he can get away with.

Athanasius on July 17, 2013 at 10:31 AM

Ol’ Jimmy Carter blanket pardoned Vietnam war draft dodgers. I think they got the national defense service ribbon too…(sarc off)

oprockwell on July 17, 2013 at 10:31 AM

Athanasius, thanks, that is an important distinction. I do wonder, though, whether Obama would apply the same blanket amnesty/exercise of prosecutorial discretion to decline to enforce the immigration laws. To some extent, he’s already done that.

wisconsin on July 17, 2013 at 10:34 AM

“Probably”?

Ray of sanity from the most unusual source

Schadenfreude on July 17, 2013 at 10:36 AM

Laws? Constitutional constraints? Who needs ‘em?

The Rogue Tomato on July 17, 2013 at 10:36 AM

The poverty pimp in chief is not king?

Schadenfreude on July 17, 2013 at 10:36 AM

He “probably” can’t run for a third term…

ITguy on July 17, 2013 at 10:36 AM

The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.”

The above statement was made by Holder on 23 February 2011. Carefully read the bold part, this President and his top lawyer both believe that they, and they alone, can determine what is and what is not constitutional. This spells the end of the Republic in my opinion. Obama and his Chief Law Enforcement Official both believe they can determine which laws they want to enforce or not enforce and no one in the media or the Judicial Branch has called them out. They have established as exceptionally bad precedent that will lead to ugly things happening.

Johnnyreb on July 17, 2013 at 10:38 AM

“Can I quit smoking? Probably not.”

cyclown on July 17, 2013 at 10:38 AM

We are probably saddled with the most dictator-loving president in our history. He probably wants to be one himself.

RebeccaH on July 17, 2013 at 10:41 AM

Dummy who can’t read cursive is “educated”.

What a country!!! Trolls, I’m laughing tears at you. YOU own her. She symbolizes all you are.

Schadenfreude on July 17, 2013 at 10:42 AM

‘Probably’?! The narcisistic, Socialistic, ‘Chavez-wannabe’ once again slips up and exposes his true nature!

“Probably not,” Obama said, according to a transcript. “I think that it is very important for us to recognize that the way to solve this problem has to be legislative. I can do some things and have done some things that make a difference in the lives of people by determining how our enforcement should focus.”

For a self-professed Constitutional scholar he continues to demonstrate his complete ignorance or his complete disdain for it, treating it like an a la carte menu!

The things this man will be known for are:

1) Setting US ‘monthly’, ‘annual’, and ‘total’ deficit-spending records…adding more debt than every other President from Washington to Clinton COMBINED.

2) Ramming his Obamacare bill into law against the majority will of the American people, thereby destroying the greatest health care system in the world.

3) His countless number of unresolved scandals / cover-ups which completely DWARFED Nixon’s involvement in 1 cover-up which forced him from office.

4) His countelss number of Constituional and Law violations while pushing his agenda during his 2 terms in office

5) Receiveing the now-bogus Nobel Peace Prize for his ‘POTENTIAL’

6) Tutored by self-professed Communist Frank Marshall Davis, educated on the writings of Socialist Saul Alynski – to include ‘Rules for Radicals’ which Obama quoted from while giving his Inaugural Speech, and being mentored by racist, anti-American, hate-spewing ‘Pastor’ Jermiah Wright

7) Defiantly, in the face of all Americans, choosing an historically documented Socialist party/movement symbol and slogan (‘Forward’) as his 2012 re-election Icon/symbol

easyt65 on July 17, 2013 at 10:49 AM

It’s that pesky Constitution thing again!

tomshup on July 17, 2013 at 10:54 AM

On that rainy night in November 2008 when I sat in my car and cried because Obama had won I knew he was going to be bad for my country. Even I in my most cynical mode couldn’t have imagined how bad. That someone is asking such a question as this and that the POTUS answers with “probably” not is frightening. That his AG and the DOJ is so uber radical is frightening. That neither one will be impeached because of the amount of melanin in their epidermus is maddening.

Translation from Obama “drat that dam–d Constitution!

neyney on July 17, 2013 at 10:56 AM

Hey dummies, he had the house and the senate and did exactly Nada…nada….nada. Hold him to account.

Schadenfreude on July 17, 2013 at 10:58 AM

@EdMorrissey in theory couldn’t president issue blanket pardon for violators of immigration law or would it have to be specific individuals?

Good grief, don’t give them any ideas they haven’t already thought of.

Bitter Clinger on July 17, 2013 at 10:20 AM

Republicans support my plan to grant blanket amnesty…ask ED – Obama

*snicker*

workingclass artist on July 17, 2013 at 10:59 AM

That his AG and the DOJ is so uber radical is frightening. That neither one will be impeached because of the amount of melanin in their epidermus is maddening.

Translation from Obama “drat that dam–d Constitution!

neyney on July 17, 2013 at 10:56 AM

Because Ya’ll…We are all about Transforming the country so STFU & Eat your Peas…

“BET’s Michaela Angela Davis made these shocking comments tonight on Anderson Cooper 360 (watch the video here).

“We’ve had this construct of this nation of laws, a nation to protect white male heterosexual Christian people. And when you are… we are moving very swiftly out of that construct, but these laws were designed to protect and serve them.”

She also adds that the women of the jury should have identified with Treyvon’s fear of getting raped by George Zimmerman, but their racism and lack of humanity trumped that feeling. The theory that Treyvon attacked Zimmerman because he feared being propositioned for sex was made popular today on Rush Limbaugh’s show (transcript here)…”

http://www.thegatewaypundit.com/2013/07/a-nation-of-laws-to-protect-white-male-heterosexual-christian-people-video/

workingclass artist on July 17, 2013 at 11:03 AM

The Senate and the President want to make you compete for your job with 11,000,000 + people. Those 11,000,000 people have 20,000,000 relatives who can also come and compete for your job, and your mother’s social security and medicare benefits, that she and your dad paid into.

The only jobs those 11,000,000 + 20,000,000 = 30,000,000 people will not be eligible for is the House, the Senate and the Presidency.

Any questions?

Wander on July 17, 2013 at 11:18 AM

Don’t fret, Bammy.
Hitler found a way to subvert the real rule of law using judges & the courts to set up an illegal rule of law.
You’ve already done so much, why stop now?

Badger40 on July 17, 2013 at 11:22 AM

Wander on July 17, 2013 at 11:18 AM

ehemmmm…What jobs?

“Two-thirds of small business have not hired anyone in the past 12 months, according to a survey commissioned by The Hartford of 1,000 small-business owners across the U.S.

Among reasons they said they won’t be able to hire, 47 percent said they can’t afford to hire; 39 percent said their business isn’t growing and 39 percent said they are taking on additional responsibilities themselves…

The lack of hiring is part of a conservative tone among small business owners, according to results from a telephone survey of business owners conducted by Braun Research between April 19 and May 1. The Hartford Financial Services Group released its Small Business Pulse survey Tuesday.

Small business owners are less likely to take risks than a year before, according to The Hartford. In three different surveys, the percent who identify themselves as “conservative” in terms of taking risks increased from 49 percent to 73 percent to 80 percent in the spring 2012, fall 2012 and spring 2013 respectively.

“The decrease in the level of risk small business owners are taking is a significant concern,” The Hartford’s Chairman and CEO, Liam E. McGee, said in a prepared statement. “Entrepreneurs’ drive, determination and readiness to take risks are what fuels small business creation, innovation and success, and we need to instill an environment that encourages their growth and development.”

The survey found that 73 percent of small business owners “feel successful.”

There’s a decline in the percent of people who feel optimistic that the national economy will strengthen this year. When asked that question a year ago, 63 percent of survey respondents said they were optimistic about the economy improving. This spring, only 47 percent of respondents said they are optimistic.

When asked about major risks to their business, 52 percent of the survey respondents cited slow economic growth, 44 percent cited health care costs and 40 percent cited taxes.

Asked about whether federal spending cuts caused by the sequester would affect their business, 49 percent said it would and three-quarters of those said it would negatively affect their business…”

http://articles.courant.com/2013-06-11/business/hc-the-hartford-small-business-survey-20130611_1_hartford-financial-52-percent-47-percent

Bummer!

workingclass artist on July 17, 2013 at 11:27 AM

Doesn’t this yurkoff of a “president” understand that there IS a pathway to citizenship already? It’s known as a legal application and follows considered steps and time to go about it LEGALLY, starting with paper work filed from the home country of whatever foreign national seeks to live here. What is it about rule of law that this marxist excrement sack has difficulty comprehending?

I’m all for amnesty. Get your tail home, and stay there. Apply legally, and don’t show your face until invited. Do that and we won’t prosecute you for being here in contravention of our laws. If that’s not amnesty, I don’t know what is.

SteveThomas on July 17, 2013 at 11:34 AM

Hey dummies, he had the house and the senate and did exactly Nada…nada….nada. Hold him to account.

Schadenfreude on July 17, 2013 at 10:58 AM

Um…in the 1st few months of his administration during which he had total control of the government he passed his $875 Billion (NON-)Stimulus bill that contained over 7,000 pieces of DNC-ONLY pork & paid for things like new windows for an abandoned Forrest Ranger building, ON-shovel-ready projects, and a failed attempt to keep unemployment below 10% (let alone the 8% he promised). I wouldn’t exactly call that ‘Naga… Nada… Nada’.

easyt65 on July 17, 2013 at 11:56 AM

Obama: I “probably” can’t grant amnesty on my own to myself.

There. That’s better.

freedomfirst on July 17, 2013 at 12:36 PM

Umm, he has already granted amnesty on his own, and Republicans in Congress have let him get away with it.

Actually, that hasn’t been fully challenged yet, but it arguably falls into the area of prosecutorial discretion, not legalization.

No surprise that an amnesty shill would be squishy on this issue. No, it doesn’t arguably fall into the area of prosecutorial discretion….it is legalization, plain and simple.

The executive order tells the executive branch to focus its enforcement and deportation efforts solely on those illegal immigrants who commit more crimes within the US, and not the minors without any other criminal activity.

The executive order does the following:

DHS Secretary Janet Napolitano today announced that effective immediately, people who were brought to the United States before the age of 16 and meet certain criteria will be considered for relief from removal from the country or from entering into removal proceedings. Those eligible will receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.

This is amnesty. It goes well beyond simply focusing on criminal illegals. It rewards non-criminal illegals with a way to legalize their status, and that process is approving applications at a 99.5% rate.

xblade on July 17, 2013 at 12:50 PM

Even if he could pardon for a non-criminal offense, it is an Act of Congress that gives aliens legal status in the United States.

federale86 on July 17, 2013 at 1:26 PM

You have to give Obama a break here. He’s never actually read the Constitution, because it’s in cursive.

The Rogue Tomato on July 17, 2013 at 1:30 PM

Carter’s thing was a pardon.

http://www.justice.gov/pardon/carter_proclamation.htm

“Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Jimmy Carter, President of the United States, do hereby grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, restoring to them full political, civil and other rights.”[...]

purpleslog on July 17, 2013 at 2:38 PM

Imagine these alternative scenarios:

1) 2014 prior to election day…Obama issues a blanket pardon for to Illegal Immigrants for crimes related to crossing the border illegal and taking up residence illegally (not for other crimes committed while being illegal).

or

2) Its 2016 during the last presidential debate. Its Republic Gov R. Hino vs Dem Sen C. Ryptomarx. SenatorRyptomarx says that the treatment of illegal aliens is an abomination to the the principles of the USA and that all humans deserve human rights. Senator Ryptomarx says if elected a pardon will be issued…and that he/she will make the case directly the current POTUS in a face-to-face meeting in the. Next day…cameras roll. They meet. Lunch. POTUS comes to press room and says the intelligence and compassion of Senator and future President Ryptomarx has convinced him and he is issuing the pardon immediately.

or

Its 2016. The dems lost the presidency and the senate. President-elec T. Partay is pro-freedom, for smaller government and for free market entrepreneurial capitalism. Apparently so are 58% of the votes. A outgoing Pres Obama plans some last days blanket pardons for: Illegal Aliens, non-violent Federal Drug Offenders, AWOL/Deserter types, and of enemy combatants held by the US military.

Discuss.

purpleslog on July 17, 2013 at 2:58 PM

Is anybody sure this guy ever studied constitutional law, or is that just like his Certificate of Birth. He has an awful shady background, but then we were told we needed a black president

savage24 on July 17, 2013 at 3:48 PM

I don’t believe Presidents can pardon people without them first being charged, at the very least, with a federal crime.

Ford pardoned Nixon without Nixon having been charged with anything. A lot of folks and media were incensed over that pardon, but it was allowed to stand.

ss396 on July 18, 2013 at 1:35 AM