Robert J. Delahunty and John C. Yoo,
Dream On: The Obama Administration's Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91
Tex. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/2195
In the area of national security, foreign policy, and military affairs (where the Executive has long held sway), the Administration has conducted an undeclared cyber-war against Iran, used military force to bring about regime change in Libya, pursued a proxy war in Somalia, and prepared for more extensive shadow warfare in Africa. The Obama Administration has been equally assertive in domestic matters. Especially since the Republican congressional victories in the 2010 midterm elections, the Obama Administration has taken measures based on claims of sole executive authority, even after Congress has considered but rejected such proposals. To be sure, earlier Administrations also deployed executive powers before a hostile Congress. In early January 2007, not long after his party had been defeated in the 2006 congressional elections. President George W. Bush announced plans for a "surge" of U.S. military forces in Iraq. President Ronald Reagan, in a similar situation after the congressional elections of 1986, began to issue Executive Orders far more frequently. The Obama Administration's preferred tool for domestic policy, however, is new: using "prosecutorial discretion" not to enforce statutes with which the President disagrees. In 2009, the Department of Justice stopped enforcing federal drug laws against individuals whose actions comply with "existing state laws providing for the medical use of marijuana." In 2011, the Department of Justice decided that it would not defend a provision of the Defense of Marriage Act in the federal courts. The Administration has also relied on "prosecutorial discretion" to shield Attorney General Eric Holder from prosecution for contempt of Congress. The Obama Administration has claimed "prosecutorial discretion" most aggressively in the area of immigration. The most notable example of this trend was its June 15, 2012 decision not to enforce the removal provisions of the Immigration and Nationality Act (INA) against an estimated population of 800,000 to 1.76 million individuals illegally present in the United States. By taking this step, the Obama Administration effectively wrote into law "the DREAM Act," whose passage had failed numerous times.