#Eventheconservativefederalistsociety
At the Mayflower Hotel, lawyers gathered for the annual Federalist Society national convention — one of the highest-profile conservative legal events of the year. The day’s big draws were the opening speech by Supreme Court Justice Antonin Scalia and an evening event featuring Justice Samuel Alito.
Before the crowd changed into black tie attire for Alito’s appearance, however, a smaller panel convened under the title, “Federalism: The President’s Duty to Take Care That the Law be Faithfully Executed.” Panelists discussed major confrontations between the branches of government, from enforcement of marijuana law and the implementation of health care to Obama’s impending executive order on immigration.
The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.
Ooops
“I think the roots of prosecutorial discretion are extremely deep,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead and defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.”
Schroeder was speaking specifically about the deferred action program that Obama already has put into place — the one affecting so-called Dreamers who were brought to the U.S. as children. But later, Schroeder expanded his legal reasoning.
“I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution,” Schroeder said. “There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.
“I agree this can make us very uncomfortable. I just don’t see the argument for unconstitutionality at this juncture,” Schroeder added.
Well, they can always look for a typo. They’re definitely unconstitutional, we know that. Or if push comes to shove the Supremes could just hand down a Bush vs Gore style one-off.
On the other hand, the Republicans can take heart in the fact that even if it’s constitutional, it’s still impeachable. High crimes and misdemeanors are something the congress gets to define all by iytself without any pointy headed lawyers interfering.
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