Peter H. Schuck: Yes, Congress can impeach Obama

The Dallas Morning News ^ | November 24, 2014 | Peter H. Schuck

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Now that President Barack Obama has granted legal relief to as many as 5 million unauthorized immigrants, Republicans are thrashing about for an effective response. Only a few hard-liners are talking about impeachment now, but more could join them out of frustration with their other options.

Many people in both parties have tried to quell such talk by saying the president is within his powers to issue the order. The problem is the pro-impeachment Republicans are right: There is a plausible case for taking that step.

By constitutional design, impeachment for “treason, bribery, or other high crimes and misdemeanors” is a political accusation and initiates a political remedy, not a legal one. It is pretty much up to Congress to define and apply “high crimes and misdemeanors,” and no court would second-guess it. The next Congress could find that the president had violated his oath to “faithfully execute” the laws by refusing to enforce important provisions of the Affordable Care Act, No Child Left Behind and, now, the Immigration and Nationality Act.

The president surely has some power to withhold prosecution, but granting legal status and work permits to millions of people most likely exceeds his discretion. No judge can decide the precise scope of his discretion because no one, including Congress, has legal standing to challenge his order in court.

Of course, many lawyers at the Justice Department and elsewhere disagree, noting that prosecutorial discretion is pervasive, that there isn’t enough money to prosecute all violators, that the president will continue to prosecute criminals and illegal border crossers, and that earlier presidents have done the same thing. These are serious arguments. But as an immigration and administrative law teacher who strongly favors more legal immigration and even broader legislative relief than Obama’s order grants....

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