By executive fiat, President Obama granted amnesty to immigrants living illegally in the United States.
It was an unconstitutional act, to be sure. Obama had previously admitted he had no authority to end deportations of illegal aliens when he said, “The notion that somehow I can just change the laws unilaterally is just not true.” Then he went about doing it anyway, conjuring a new breadth of hypocrisy.
His successor, President Trump, is now taking the first step toward restoring sanity to the rule of law as it applies to the Constitution and immigration.
By rescinding the Obama-created Deferred Action for Childhood Arrivals (“DACA”) program that gave a deportation reprieve to illegal immigrants who came to the U.S. as children, Trump is returning legislative authority to the legislature. He is reinstating the separation of powers that are fundamental to our democracy.
Usurping Legislative Authority
Under the Constitution, congress is vested with writing laws and the president is charged with executing those laws. This is especially true when it comes to immigration.
At the end of the 19th century, the U.S. Supreme Court declared that congress has “plenary power” (meaning full and complete) to regulate immigration. Derived from Article I, Section 8 of the Constitution, the doctrine is based on the concept that immigration is a question of national sovereignty, relating to a nation’s right to define its own borders and restrict entrance therein.
As the high court observed,“Over no conceivable subject is the legislative power of Congress more complete.” (Oceanic Stem Navigation Co. v. Stranahan, 214, U.S. 320)
Nevertheless, Obama decided to usurp this power by unilateral directive, unconstrained by established checks and balances. In so doing, he granted himself extra-constitutional authority and upset the carefully balanced separation of powers. He also subverted the nucleus of our constitutional design: the rule of law.
The only exception to the power of congress in dictating immigration is the 1952 statute in which the legislative branch transferred its authority to the president in cases involving national security. The president is specifically empowered to restrict foreigners from entering the country to protect the safety and security of Americans. This law formed the basis for President Trump’s travel ban.
In all other immigration matters, only congress is authorized to make laws which the president must enforce.
Distorting Prosecutorial Discretion
Those who supported Obama’s actions not to enforce the law argued that he was merely engaging in “prosecutorial discretion”. It is one of those wonderfully fungible phrases in the law. Elastic because it is vague and ambiguous. Useful because it can be easily abused.
Obama appropriated this doctrine to justify his near boundless discretion to amend, revise, waive or suspend the execution of immigration laws. As chief executive, he empowered himself to decide what laws may be enforced or ignored and what persons may come or go across our southern border irrespective of what the law actually states.
In past decisions, the Supreme Court cautioned the executive branch that its prosecutorial discretion, while broad, is not “unfettered.” (U.S. v. Batchelder, 442 U.S. 114) It is subject to restrictions. The doctrine may not be used to adopt a sweeping policy of non-enforcement of the law. It applies only to decisions not to prosecute or expel specific individuals or small groups of people, typically for exigent reasons like war, civil unrest or political persecution.
By contrast, Obama bestowed a wholesale, blanket amnesty for an entire class of people. He did so not for the reasons allowed by law, but for purposes that were purely political. It was a flagrant abuse of prosecutorial discretion.
The centerpiece of Obama’s 2014 amnesty program was the Deferred Action for Parents of Americans and Lawful Permanent Residents, widely known as “DAPA”. But this law never went into effect because a federal judge blocked it, declaring that the program was a likely abuse of executive powers. The U.S. Court of Appeals for the Fifth Circuit agreed, and that decision was left intact by the Supreme Court.
With several states vowing a similar challenge to DACA, it was destined for the same judicial fate. That is, an unconstitutional order.
Breaching His Sworn Duty
Obama insisted he was forced to act because “congress failed to act.” It was an appealing political argument, but utterly untrue. Congress did act by passing a law in 1996 requiring federal agents to deport illegal immigrants, with few exceptions. The statutory language is mandatory. That law remains in effect today. Yet, Obama breached his sworn duty by failing to enforce the law. Instead, he ordered immigration agents, in effect, to break the law.
Article II, Section 3 of the Constitution requires that the President “shall take Care that the Laws be faithfully executed.” Nowhere is it written that the chief executive is granted the latitude to pick and choose which laws he wants to enforce. He cannot ignore or nullify laws he does not like because the Constitution gives him no power not to execute laws.
To infer such latitude would invite an authoritarian rule anathema to our Founding Fathers’ vision. Obama admitted as much when he said, “The fact of the matter is, there are laws on the books that I have to enforce.” He was specifically referring to immigration laws. The Constitution does not permit a president to engage in a de facto repeal of an existing law. To do so is, quite simply, lawlessness and a dereliction of duty.
If a president can refuse to enforce a valid federal law, are there any limits to his powers? What is to stop a president from rewriting other laws with which he disagrees? Or to act where congress has declined or refused to act? Why even have a legislative branch of government at all? What is the point of a Constitution which enumerates and circumscribes powers and duties?
President Trump will be criticized for revoking his predecessor’s immigration program. But his decision bears fidelity to the Constitution and the rule of law.
Only congress is empowered to alter immigration laws that affect those who are here in the U.S. illegally. It can either pass a new law or decline to do so. A determination not to act is, by itself, a deliberate act. This is how the Framers constructed our system of government.
Congress considers and debates a great many bills. Not all of them pass. This is not a “failure” in a conventional sense, but a decision by declination. It constitutes a prudent and calculated process.
Obama twisted the law, ignored the Constitution, and abdicated his primary responsibility as chief executive.
President Trump is moving in a different direction.