Obama's refusal to deport illegal aliens unconstitutional, say law professors

Two law professors, including one who served in the Bush Justice Department, have published a paper charging that President Obama violated the Constitution with his directive to law enforcement not to deport illegal aliens.

In the paper entitled, “The Obama Administration, the Dream Act and the Take Care Clause,” authors Robert Delahunty of the University of St. Thomas [Minnesota] and John Yoo, a law professor at University of California at Berkeley and former U.S. deputy assistant attorney general, blast Obama's moratorium on deporting certain illegal immigrants. The professors dismissed the idea that the decision on whether to deport illegal immigrants who are arrested for minor infractions is a matter of prosecutorial discretion...

“If there’s one case and it’s left to the prosecutor well that’s fine, but what Obama did was take a million cases and leave it up to prosecutorial discretion, “John Yoo said to FoxNews.com. “The only reason it’s under [Department of Homeland Security Secretary] Janet Napolitano’s discretion is because Obama had made his decision. If she’s doing it under her own, she would have to be fired.”

An abstract for the paper debunks the claim that the president has the Constitutional to not enforce civil laws crafted and passed by Congress.

“It’s the duty of the president. He must always uphold the law,” Yoo said, adding that the only exceptions in doing so are if laws are unconstitutional or if prosecuting them can be reasonably deemed not viable...

In June, President Obama announced that the deporting of young, undocumented immigrants [illegal aliens] who match criteria from already-proposed DREAM Act lesgilastion would end under his administration’s watch. The effect was to put in place most of the measures in the act, but by administrative order, not through the legislative process. In August, a group of federal agents filed a lawsuit against DHS secretary Janet Napolitano, claiming that the new directive forces them to break the law.

Under the DREAM Act, illegal aliens who are eligible beneficiaries would not have faced deportation as long as they meet the following criteria:

... Be between the ages of 12 and 35 at the time that the bill was enacted...

Sen. Marco Rubio (R-Fla.), who was a key backer of the DREAM Act, blasted the president's preemption of the in June...

“…by once again ignoring the Constitution and going around Congress, this short term policy will make it harder to find a balanced and responsible long term one.”