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Earlier this week, President Obama made it clear that he will soon offer some form of limited amnesty to about five million foreign nationals who are currently living illegally in the United States. He will do so by issuing an executive order to federal officials who oversee immigration directing them to undertake a course of action that, if complied with individually by all persons whom he designates as eligible, will cause the federal government to remove the threat of deportation from those who meet the standards he will lay down.
Can he legally do that?
To address that question, we need to start with the principle that a presidential action may be lawful at the same time that it is unconstitutional. The president has the legal power to defer deportations. The power is called prosecutorial discretion. This is a power traditionally recognized as inherent in the presidency that enables him to defer or modify all federal law enforcement.
The theory is that the president needs the ability to allocate resources as the changing times, emergent events and public needs may require. Thus, he can, for example, defer prosecuting bank robbers and aggressively pursue drug dealers. That wouldn’t mean that all bank robbers would go free; it would mean that either state prosecutors would pursue them, or they’d wait for trials until the drug kingpins were caught and convicted. But he could set some free if he wished.
The check on the exercise of prosecutorial discretion is gross abuse, which is typically demonstrated by either improper executive motive or effective nullification of law. I don’t know what the president’s motive is. If it is political, I suspect his efforts will backfire. He cannot grant citizenship or the right to vote.
If his motive is humanitarian or moral, I understand him. Under the natural law, people have the right to travel and live wherever they wish. The existence of our natural rights is not conditioned upon the place where our mothers were at the times of our births. And from a free market and historical perspective, immigrants have enhanced the economy as they move up the demographic ladder.
But the president’s behavior has serious constitutional dimensions that go far beyond the motives in his heart, and his oath is to the Constitution, not to his heart.
If the president nullifies deportations on such a grand scale that the effect is the nullification of federal laws, then he has violated his oath “faithfully” to execute his presidential obligations. The Framers required that every president swear to do his job “faithfully” to serve as a reminder to him that his job requires fidelity to the enforcement of laws with which he may disagree. The American people, Congress and the courts need to know we have a president who will enforce the laws, whether he agrees with them in his heart or not. Without presidential fidelity to the rule of law, we have a king, not a president.
By conferring temporary legal status upon foreign nationals who have not achieved it under the law, providing they meet criteria that he will establish, the president affects huge numbers of persons and produces a result that is the opposite of what the law requires. Can the president’s exercise of his prosecutorial discretion constitutionally nullify a federal statute? No. Can the president’s exercise of his prosecutorial discretion effectively rewrite a federal statute? No.
It is unconstitutional for the president to nullify federal law. It is unconstitutional for him to refuse to enforce laws that affect millions of persons and billions of dollars. It is unconstitutional for him to refuse to enforce laws merely because he disagrees with them — particularly laws that pre-existed his presidential oaths. And it is unconstitutional for him to rewrite laws, even if he is doing so to make them more just.
Every president since Dwight D. Eisenhower has deferred some deportations. President Reagan deferred deportations for about 100,000 families of foreign nationals in 1987 under his reading of the congressionally authorized 1986 amnesty law, and President George H.W. Bush did so in 1990 for about 350,000 foreign nationals under his reading of the same law. Each of these was based on a principled public presidential reading of the words and purposes of a federal statute. Obama does not purport to read and interpret the current immigration law; rather, he effectively rewrites it.
What can Congress do? Congress can pass legislation to invalidate Obama’s executive actions. Yet even if it did so and overrode his certain veto, it has no assurances that Obama would be bound by the new legislation. He refuses to enforce the plain language of well-established and never judicially altered federal statutes. What assurances does Congress have that he would follow any new statutes that he has vetoed and that regulate his behavior?
Is the blanket refusal to enforce federal laws that profoundly affect five million persons — and in the process severely straining the social services of all 50 states — an impeachable offense? The president is playing with constitutional fire, and impeachment is the only constitutional remedy available, short of 25 months of a constitutional conflagration that he has ignited.
Copyright 2014 Andrew P. Napolitano. Distributed by Creators.com.
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Marijuana possession and sale remain serious felonies under federal law, even for trivial amounts. This too, affects many millions of people, including those incarcerated or who should be tried and incarcerated if federal law is enforced. The federal government’s jurisdiction supercedes state law even if contrary.
There are a growing number of states that have decriminalized marijuana possession, use and sale, even for recreational purposes, let alone purported medical ones.
Taking the judge’s legal reasoning into account, the President also has no constitutional discretion in allowing this violation of federal law without enforcement. Under the same legal theory, therefore, the President ought to be impeached for refusing to crack down on marijuana possession, use or sale, anywhere in the United States, regardless of any personal opinion based on humanitarian grounds or natural law.
Sometimes, to the sensible layman, as well as Dickens, the law can be an ass.
Under the natural law, people have the right to travel and live wherever they wish.
No they don’t. A lawyer should be able to grasp this elementary application of logic: all travel off your own property necessarily requires somebody else’s permission. Of course, Napolitano is probably more an entertainer at this point.
And from a free market and historical perspective, immigrants have enhanced the economy as they move up the demographic ladder.
This is sentimental handwaving. Does he really believe 85 IQ African and Indio immigrants are going anywhere but sideways?
“And from a free market and historical perspective, immigrants have enhanced the economy as they move up the demographic ladder.”
What utter nonsense!!
The welfare, medical, criminal, educational costs of low IQ, low skilled immigrants, with huge birth rates resulting in more of the same low IQ types is resulting in enormous problems and destruction of our society.
Look at Mexico, like what you see?
They take and destroy tremendously more than they give. Take it from someone who lives in Los Angeles. We see it everyday.
Inconvenient facts, I know.
The question remains, who are the ones mandating this unwanted immigration?
Here is what the Catholic Encyclopedia has to say about immigration regulation:
“The legal control of migration began when it ceased to be collective and began to be individual. Laws have been passed preventing people from leaving their native land, and also, by the country of destination, forbidding or regulating entrance thereto. Extensive regulation has been found necessary applying to transportation companies and their agents, the means of transportation, treatment en route and at terminal points. The justification of public interference is to be found in the right of a nation to control the variations of its own population.”
People have a natural right to move, but this right is not absolute. The country on the receiving end has a right to regulate and control immigration to secure the general welfare of it’s people, the integrity of it’s culture, and it’s internal security. The current Catholic Catechism reaffirms this.
More precisely, I should have said “the permission of adjacent property owners.”
I agree with your basic assertion about Obama’s executive amnesty but I take issue with two assertions in your article
1) You say: Under the natural law, people have the right to travel and live wherever they wish.
Where can you find a natural right to live anywhere one wants? To my knowledge it is a basic right of all peoples, acting through constitutional processes, to decide who shall be allowed to enter and reside in their countries and to become citizens. As practical matter no country in the world allows anyone to come to their territory. Thus, if the alleged natural law does exist it has been observed by no state at any time.
2) You say: And from a free market and historical perspective, immigrants have enhanced the economy as they move up the demographic ladder.
What free market principle says that we must accept anyone who wants to come to this country? Furthermore, there is nothing more unhistorical than to assert that because certain developments occurred in the past they will inevitably recur in our own times. The fact is that our current de facto practice is to accept low skilled individuals who are a burden on the taxpayers of the country and lower labor productivity than the average of Americans. It is also a demonstrated fact that many of the groups that now immigrate to this country in sizable numbers underperform natives after several generations. (Making that simple observation cost Jason Richwine his job.)
Probably the largest single factor determining long term economic health of an economy is the quality of its human capital. By that measure our policy is a disaster. If you want to keep believing what you wrote on sentimental grounds despite all the evidence to the contrary, that is your privilege. But if you do please fix the sentence.
“Under the natural law, people have the right to travel and live wherever they wish. ”
Only if ‘there is as much and as good left for others’, to quote John Locke. You have no natural right to move onto someone else’s property and live there, depriving them of the use of their own property.