A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

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Since the 1990s, Congress has maintained that Jerusalem should be recognized as Israel’s capital. Since Israel’s founding in 1948, presidents have stated that Jerusalem’s status can only be decided as part of a broader peace settlement. On Monday this dispute again reached the Supreme Court, and it offers the justices a unique opportunity to elucidate the proper way to resolve separation-of-power disputes between Congress and the executive.

Zivotofsky v. Kerry involves Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. His parents want Israel identified as his birthplace on his passport. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, permits this choice, but the secretary of state refused to comply, listing Jerusalem alone as his place of birth. The secretary argues that the law violates established U.S. foreign policy and interferes with the president’s exclusive power to recognize foreign states and their territorial extent.

In the first round of this litigation, the U.S. Court of Appeals for the District of Columbia concluded that this contest presented a political question that the courts could not answer. The Supreme Court reversed that decision, explaining that however “political” the circumstances, the question was a straightforward one of constitutional law suitable for judicial resolution.

The D.C. Circuit reheard the case last year and concluded that section 214(d) is unconstitutional because the president has the exclusive authority to determine the territorial boundaries of foreign states, their capitals and their governments—at least for purposes of U.S. diplomatic intercourse.

This authority is based in clear constitutional text that gives the president the power “to receive Ambassadors and other public Ministers.” Although the court found this language ambiguous (relying instead on historical practice and Supreme Court statements that the president alone has the power to recognize a foreign state as sovereign), the framers used this language precisely and to a purpose.

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By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Law professor Wendy Wagner’s scholarship at the University of Texas captured the attention of the U.S. government, which contracted with her to analyze how federal agencies can better use science in decision making. Unfortunately for Ms. Wagner, her federal contract means that she cannot contribute to any political party, committee or candidate for federal office. So in 2011 she went to court, asserting that the 74-year-old ban on contractor contributions is unconstitutional.

On Sept. 30, the full U.S. Court of Appeals for the D.C. Circuit heard arguments in Wagner v. FEC. The case provides a much-needed opportunity for the courts to demand strong justification for laws curtailing political speech.

The question in Ms. Wagner’s case is whether the ban on contractor contributions furthers the government’s interest in preventing quid-pro-quo corruption—meaning an exchange of dollars for political favors. This is the only interest considered sufficient to justify limits on political contributions, consistent with the First Amendment, under the Supreme Court’s 2010 decision in Citizens United v. FEC, and the D.C. Circuit’s own precedent that year in SpeechNow.org v. FEC.

The government contends that banning contractor contributions prevents quid-pro-quo corruption because if contractors could make donations, candidates might return the favor by helping secure a federal contract. The ban’s genesis lies in the Works Progress Administration scandal of the late 1930s, wherein WPA employees and contractors were strong-armed into making contributions to Democrats as a condition of keeping their jobs or contracts. The WPA’s blatant solicitation shocked the nation, leading to the 1939 Hatch Act, which included broad limits on political activity by federal employees. These included a ban on employee contributions to candidates and a ban on contributions by contractors. Read more »

By David B. Rivkin Jr. and Andrew Grossman

The criminalization of politics is bad enough—just ask Texas Gov. Rick Perry—but a new turn to target citizens as well threatens to permanently warp our political discourse. Like it or not, federal courts will have to intervene to uphold Americans’ First Amendment rights against win-at-any-cost politics.

Wisconsin is ground zero of this phenomenon. A partisan elected district attorney, John Chisholm, reportedly goaded on by his union-steward wife, Colleen, decided to take aim at Republican Gov. Scott Walker after his 2011 “Budget Repair Bill” cut back on public-sector collective bargaining within the state. But Mr. Chisholm didn’t stop there: After an aggressive criminal investigation failed to knock Mr. Walker out of office, the district attorney set his sights on the governor’s philosophical allies, an assortment of conservative citizen groups that supported Walker’s reforms.

The claim was that these groups illegally “coordinated” their speech on the issues with Gov. Walker’s campaign, thereby circumventing campaign-finance regulations. The evidence? Intercepted emails and phone records showing that some of the groups communicated with Gov. Walker’s campaign, mostly on policy issues. That wasn’t enough to bring charges, but it did allow Mr. Chisholm to launch an aggressive criminal investigation targeting Gov. Walker’s supporters, complete with home raids and everything-but-the-kitchen sink subpoenas.

These efforts had the intended effect: Funding for conservative policy advocacy dried up and Gov. Walker’s supporters were forced to redirect their energies from political activism to courtroom litigation.

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Obama’s directive to protect the privacy of foreigners will make Americans less safe.

By Mike Pompeo and David B. Rivkin Jr.

On Jan. 17, in response to former National Security Agency contractor Edward Snowden’s theft of U.S. intelligence secrets and concerns over the NSA’s bulk metadata collection, President Obama issued a Presidential Policy Directive (PPD-28) that neither strengthens American security nor enhances Americans’ privacy. To the contrary, it undermines our intelligence capabilities in service of a novel cause: foreign privacy interests.

All nations collect and analyze foreign communications or signals, what is known as “signals intelligence.” American technological prowess has produced the world’s most abundant stream of signals intelligence, thwarting plots against the U.S. and saving lives. PPD-28 threatens American safety by restricting the use of this signals intelligence.

First, under the new directive, U.S. officials are required to ensure that all searches of foreign signals intelligence are limited to six purposes: countering foreign espionage, terrorism, weapons of mass destruction, cybersecurity, threats to U.S. or allied forces, and transnational crime.

Such policy guidance is appropriate in principle, but these limitations are mere window dressing. Intelligence activities are already heavily scrutinized by executive-branch lawyers to protect Americans’ privacy. Yet the intelligence community must now operate under the presumption that they are somehow engaged in wrongdoing and must justify each and every step by reference to a proper “purpose” to rebut that presumption. This will make intelligence analysts overly cautious and reduce their flexibility in handling security threats.

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Now the Supreme Court will weigh in on Obama’s power play to stock the National Labor Relations Board.

By David B. Rivkin Jr. and Lee A. Casey

Later this month the Supreme Court will hear a case that should resolve how much latitude presidents have to make recess appointments to federal offices that otherwise require Senate confirmation. The boundary of this power has never been decided by the high court. Yet the entire scheme of the U.S. Constitution—which is based on a separation of powers, enforced through checks and balances to safeguard individual liberty—is at stake.

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

Article II, Section 2 of the Constitution states that “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The federal appellate court’s decision hewed closely to the text and original meaning of this so-called recess appointments clause. Yet the ruling stunned many constitutional lawyers. That’s because the original limitations on the president’s power to make these appointments had long since been effectively discarded.

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