Imagine: A Republican president submits to Congress a bill abolishing the capital gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital gains taxes, and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)
It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap-gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama's bombshell amnesty-by-fiat is a subversion of straightforward immigration law.
It is shameful that Congressional Democrats should be applauding such a brazen end-run. Of course it's smart politics. It divides Republicans, rallies the Hispanic vote and pre-empts Marco Rubio's attempt to hammer out an acceptable legislative compromise. Very clever. But, by Obama's own admission, it is naked lawlessness.