Under an Executive Order signed by Barack Obama, the Department of Homeland Security will no longer enforce immigration laws against illegal immigrants who meet certain criteria. They are: they came into the United States when they were less than 16 years old, they are currently under the age of 30, they have not committed any major crimes, they have resided in the United States for at least 5 years, and they are in or have graduated from school or have served in the armed forces. In short, this is the DREAM Act which was, for whatever reason and under whatever circumstances, not passed by Congress. This order affects an estimated 800,000 people.
While there is broad consensus on both sides of the issue for immigration reform, but reinterpretation of existing law and de facto presidential edict through executive orders is certainly not the way to go about seeking a solution.
There is a basic Constitutional obstacle in Obama’s way and one which needs to be addressed since this goes to the core of his alleged abuse of power. Article I, Section 8- the enumerated powers clause- gives Congress the absolute authority to “establish a uniform rule of naturalization.” Border patrol and immigration enforcement is not, according to the Constitution, granted to any branch of government, but since 1889 the Supreme Court has inferred that even here, authority also resides in Congress. These were the so-called Chinese Exclusion Cases.
Every immigration and naturalization law has spelled out the grounds for deportation and have explicitly stated the circumstances under which the Executive Branch may suspend such deportations. These grants of authority to the president usually involve “hardships.” For example, Bill Clinton used his executive authority to allow many immigrants into the country fleeing political upheavals in Central America and, most notably, Haiti. Clearly, (giving the benefit of the doubt) these could be defined as “hardships.” But Obama’s suspension of deportations clearly are not “hardships.” If so, then anyone illegally crossing the border can claim a “hardship” of some kind and immigration laws would be but words on a page with no meaning. Regardless, these executive exceptions do not grant the president any authority to declare a whole class of illegal immigrant off limits to enforcement, and certainly no hardship equals 800,000.
Furthermore, the Supreme Court has said since 1952 in the Steel Seizure Cases that because Congress grants the president a narrow power in the domestic area, should they reach for broader power (especially in an area where Congress has enumerated power) it would be unconstitutional.
As noted in part 1, the president may go against the will of Congress and refuse to enforce a law with which he disagrees if the law itself is unconstitutional. No one- BUT NO ONE- can make the claim that our immigration laws passed by Congress are unconstitutional. This is an enumerated power exclusively reserved to Congress. No one can say that Congress lacks the power to force the deportation of people, despite their age, who enter this country illegally and undocumented.
In essence, Obama is claiming prosecutorial discretion in enforcing the immigration laws. By saying that he is going to concentrate on the deportation of violent criminals, gang members, drug smugglers and the like and ONLY them, he violates the text and spirit of our immigration laws. Then Homeland Security Secretary Janet Napolitano had this to say:
Our nation’s immigration laws must be enforced in a firm and sensible manner. But they are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Discretion, which is used in so many other areas, is especially justified here.
Napolitano and Obama apparently do not understand the term “discretion.” It means whether to enforce a law in a particular case, not the wholesale ignorance of the law in general. Just imagine the mayhem that would ensue if this odd theory of presidential power were the norm. A future president could simply repeal Obamacare by directing the IRS not to fine people without health insurance. They could just not prosecute a health insurance company because they wrote a policy that failed to meet federal standards. They could just tell the IRS and Justice Department not to pursue taxpayers who fail to pay capitals gain tax. They can tell the EPA not to enforce certain clean air rules and regulations. And the list goes on.
One fully understands the political realities of having immigration reform measures enacted by Congress, especially in this political climate. But because Congress fails to act, despite the noted need to act by most members of Congress, is no excuse for any president to unilaterally change existing immigration laws. For better or worse, the president is sworn to faithfully execute the laws that exist. If he does not like a particular law, he can work with Congress to change it. By the same token, he has to be willing to compromise.
Presidents push the boundaries all the time with respect to their powers. Usually, this is in the area of foreign policy where it is somewhat understandable since Congressional dawdling can cause harm. However, border policy is not such an instance. While we can somewhat understand Obama with respect to children brought to this country before they were 16 and all, any sympathy that may evoke is negated when one realizes that this action is but one of many where his administration at his urging has flouted the law. Apparently, prosecutorial discretion has tentacles throughout immigration law enforcement.
To wit: In 2009, in response to a workplace raid in Washington that netted 28 illegal immigrants using false social security numbers, the administration effectively ceased workforce raids. Some on the Left rail about the use of undocumented workers by American businesses and assert that we should be going after the employers. But when an administration puts roadblocks in the way of that deterrent action and even ceases such raids, that point is kind of moot. When is the last time we heard of this administration enforcing immigration laws against an employer?
One way to catch potential undocumented workers is to require employers to use E-Verify. However, this administration has delayed implementation of the program- which is written into the law- and this writer is unsure today as to whether the federal government uses it. These delays have been going on since 2009 for dubious reasons- the very small percentage of false positives which can be easily corrected through the appeals process.
In 2010, the administration redeployed $50 million in allocated funds for virtual fencing along the southwestern border. These funds were allocated under the Obama stimulus. I distinctly remember a president named Nixon not using funds for their appropriated purpose. Napolitano claimed that cost over-runs were the reason. Hence, no virtual fencing on the southern border.
The administration has also ceased suing so-called sanctuary cities- those that refuse to use city resources to “enforce” immigration laws. No one is asking them to enforce a law, but to obey a federal law. If, upon arrest for anything, the offender is found to be an undocumented immigrant, they refuse to notify ICE. Furthermore, the Obama administration more or less admits guilt in flouting immigration law through a document called “Administrative Alternatives to Comprehensive Immigration Reform.” This document laid out executive actions to be taken should Congress not pass immigration reform. In August 2010, ICE, at the urging of officials in Washington, began a system known as “administrative amnesty.” Agents were no longer allowed to pick up a person for entering the country illegally or with false documents, but only those arrested for a criminal violation.
Sadly, this use of prosecutorial discretion- if that is what we want to call it- has resulted in some sad stories. But perhaps this story from 2013 exemplifies what happens when a president takes it upon himself to decide when to and when not to enforce a law. In August of that year, Mario Chavez, an illegal immigrant, was arrested for threatening his 6-year-old son with a knife. His wife obtained a protective order, but Chavez made bail and was released. Previous to this, the Santa Clara County, California board of supervisors decided not to use county funds to honor ICE detainers. The Obama administration did nothing to enforce their obligations under the law. A month later, Chavez stabbed his wife to death. According to ICE officials, had the Obama administration held Santa Clara County to their end of their commitment, ICE could have kept Mr. Chavez off the streets. Obama’s lackadaisical and selective approach to established immigration laws has blood on its hands.
Given Obama’s broad overreach in this area, his unilateral writing of immigration law and the fact that Congress and Congress exclusively has the enumerated power to legislate in this area, Barack Obama can clearly be held accountable for his actions and inactions and that of those charged to carry out his policies.