President Obama recently announced that his administration would no longer enforce the laws that require deportation of illegal aliens in cases where the illegal alien had been brought to the United States as a child and was raised here.
Some have reacted to this announcement with shock, but there is a long history of Presidents threatening to refuse to enforce laws, and occasionally making good on that promise. The most famous (and notorious) example is President Andrew Jackson responding to a Supreme Court decision with the phrase, “[Chief Justice] John Marshall has made his decision. Now let him enforce it!” By this statement, President Jackson was gruffly pointing out that the Supreme Court does not have an army or a police force, so it cannot execute upon its own orders. That executive function is left to the President.
The idea that the President can refuse to enforce an unjust or offensive law is a good thing. It is one of the checks and balances built into the federal system, and it is inherent in the idea that the three branches of the federal government are co-equal. Each branch must be left to do the job granted to it under the Constitution without interference from the other two branches. So, for example, the Supreme Court can rule however it wants on a case, regardless of what the President wants. One result of this co-equality of branches is the Political Question doctrine that is occasionally invoked by the Supreme Court. The Political Question doctrine holds that certain issues are best decided by the voters in the next election, especially issues that relate to disputes among the three branches of government, or issues relating to powers granted by the Constitution wholly to one branch of government.
Some might say that it’s one thing for a President to ignore a Supreme Court decision decided by 9 non-elected justices, but quite another and more arrogant thing for a President to refuse to enforce laws passed by the democratically elected representatives of the people in Congress. You can draw your own conclusion about that. In any event, President Obama took this bold and controversial step in order to avoid deporting young people, mostly Hispanic, who had been raised in this country. Whatever one thinks of the policy impact of Obama’s move, it at least reminds the current generation of Americans that Presidents can refuse to enforce laws that they find offensive or unjust.
So, here’s an idea. As long as we are refusing to enforce laws in order to protect children, let’s ignore Roe v. Wade. In the Roe case, the Supreme Court found that there is a right to abortion in the U.S. Constitution, an obvious falsification that will be apparent to anyone who has read the U.S. Constitution. The Court arrived at this inane result only by sophistry and rhetorical gymnastics of the highest order. After Roe, the President supposedly must send the federal marshals into any state that attempts to shut down abortion clinics and those marshals must force the state to allow the abortion clinic to continue to operate. But why not just ignore the Roe decision? Obama has showed us how to win. The next time we have a pro-life President, he should simply announce that the states can pass what laws they wish about abortion and the federal marshals will not be deployed. Game over.
James Taranto coined the phrase “the Roe Effect.” The idea behind the Roe Effect is that people who condone abortion have more abortions, and thus slowly over time remove their genes and their family culture from society. Thus, abortion must eventually become illegal again, because the people who are left will be those who oppose abortion. So, under this view, abortion is inevitably headed for the dustbin of history. It’s going to happen. It’s just a question of when.
It would happen a lot sooner if a President would just refuse to enforce Roe v. Wade and let those army-less, police-less nerd lawyers over at the Supreme Court try to enforce it themselves with their gavels.
Good luck, nerds.