All-Star Panel: Obama's action on immigration constitutional?

This is a rush transcript from "Special Report," November 20, 2014. This copy may not be in its final form and may be updated.


SENATE MAJORITY LEADER HARRY REID, D-NEV.: And 39 different executive actions have taken place since Eisenhower by virtually every president giving millions of people of the relief that President Obama is doing with the action he has taken.

HOUSE MINORITY LEADER NANCY PELOSI, D-CALIF.: Look to Ronald Reagan, your hero. Look what he did to keep families united and to protect people in our country.

SENATE MINORITY LEADER MITCH MCCONNELL, R-KY.: If the president truly follows through on this attempt to impose his will unilaterally he will have issued a rebuke to his own stated view of democracy.

GOVERNOR-ELECT GREG ABBOTT, R-TEXAS: We are prepared to assert a legal action against the president because we believe what the president is doing is completely unconstitutional.


DOUG MCKELWAY, GUEST ANCHOR: There you have it, the governor-elect of Texas promising a lawsuit about this unilateral executive action. He is not the only one. We have just gotten word that Oklahoma attorney general Scott Pruitt also promises a lawsuit. He says in a statement "If the president takes an executive action that violates his constitutional duty to faithfully execute immigration laws passed by Congress we will take action to hold him accountable."

And before we get to the panel, one more excerpt of the president's speech which has just been handed to us, quote, "The actions I'm taking are not only lawful. They are the kinds of actions taken by every single Republican president and every Democratic president by for the past half- century. And to those members of Congress who question my authority to make our immigration system work better or question the wisdom of me acting where Congress has failed, I have one answer, pass a bill." Judge, you think it's unconstitutional. Tell us why.

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: The president's power is profoundly unconstitutional, profoundly unconstitutional. Here's why. The president has this power called prosecutorial discretion. Basically it lets him ratchet up or ratchet down what law enforcement is going to do. So he says to the Justice Department and DHS ratchet down the deportations. Ronald Reagan did that. George H. W. Bush can do that. He can do that for a class of people a small class of people, 100,000 here, 100,000 there.

When he does it for half the foreign nationals who are in this country illegally, the practical effect of that is not just nullifying their deportations, it's nullifying the law. It's rewriting the law. When he says I won't deport you if you do a, b, c, d, and e, which he is going to say in a few hours, and makes up the a, b, c, d, and e, it doesn't come from the Congress, he's rewriting the law.

MCKELWAY: So this is a matter of scale?

NAPOLITANO: It's a matter of degree, absolutely. A president can say I'm not going to deport women over 85 or women of child bearing years. But when he says I'm not going to deport half the illegals here, he has violated his oath to uphold the law. The American people are entitled to know the president is going to uphold the law and not rewrite.

MCKELWAY: But A.B., that raises the question of where do you draw the line if it's a matter of scale, a matter of degree?

A.B. STODDARD, THE HILL: Right. And there is no precedent for that. This is largely untested in the courts and it will go there to be decided. But it is -- the judge is right. It has never happened for so many people.

Now, the other thing is that it is -- what is the definition of faithfully execute? It's obviously in the eye of the beholder. But the president is going to talk a lot tonight about accountability, about them paying taxes, getting into the system. But it is amnesty because it is forgiveness. It is technically forgiveness of law-breaking.

And so we're going it see this played out. What's interesting is that the polling shows support for what the president doing, just not the way in which he is doing it. So, as we look to this thing being reviewed in the courts, it will be interesting to see politically what's happening in the next two, four, six weeks. Maybe Republicans in Congress don't pick a fight on this. Maybe it becomes more popular in six weeks in the polls.
Maybe it doesn't and Hillary Clinton at some point has to announce in eight weeks she is running for president and doesn't know what to say. I think we have no idea because of the polling that says most of the country is with this permitting, this forgiving, although this is not doing it by fiat.

MCKELWAY: If this goes to the courts, Charles, the president may be his own worst enemy given the compilation of statement he has made against executive action.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Well, it's amazing string of statements he has made for years. Remember, he has control of the Congress in 2009 and 2010 where he can do this through legislation. He doesn't lift a finger. And then for the next four years he repeats again and again that this would be imperial, monarchical, outside of the constitution. It's not allowed under our system. Now all of the sudden he discovers these other cases.

As the judge says, it's not actually only a matter are of scale. It's completely undermining the intent of the law as written. The law says if you come here illegally you aren't allowed to stay, and you certainly aren't allowed to work. In fact, the prohibition on work is so strong that if anybody hires an illegal alien the state will punish the person who hires them.

All of a sudden, Obama is going to issue a permit to allow these people to work? It's the complete undermining of the law and rewriting of the law. I think if it ends up in the courts, the courts will rule strongly against the president because otherwise any president can rewrite any law at any time by saying "I waited long enough. I'm tired of waiting.
Do what I tell you, or I will enact a new law myself."

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