The Nullifier-in-Chief
The border crisis is government without consent of the governed, brought to us by President Obama.

(Alex Wong/Getty Images)


But the proponents of open borders and the nullification of our immigration laws are not asking for, nor are they very likely expecting, the “consent of the governed.” Instead, they are planning to use what Pelosi herself called a “humanitarian opportunity” to establish their immigration agenda not “from reflection and choice,” but through circumstances that they allege are beyond our control, the “accident” of mass migration.

Of course, the Obama administration claims that, in its handling of the child migrants, it is following the law. It maintains that its hands are tied by the 2008 Wilberforce anti-trafficking legislation, which requires that minors who have been illegally trafficked from Central America be allowed to remain in the U.S. until a lengthy legal process (possibly lasting years) is completed, to see if they qualify for asylum. Some well-meaning legislators including Senator John Cornyn (R., Texas), Representative Cuellar, and the House Republican leadership appear to have swallowed the canard that the 2008 anti-trafficking law forbids the timely and expedited removal of illegal-immigrant minors.

However, there is little evidence that the recent illegal immigrants from Central American have been victims of trafficking against their will. Instead, family members have paid smugglers to voluntarily bring their relatives or themselves to the United States. Trafficking and smuggling are two entirely different crimes. Immigration and Customs Enforcement makes a clear distinction between victims of coercive trafficking (e.g., sex trafficking) and voluntary participation in smuggling operations.

Furthermore, the Wilberforce Act states that application of the law can be limited in “exceptional circumstances.” The sponsor of the Wilberforce legislation, Senator Dianne Feinstein (D., Calif.), noted that the “exceptional circumstances” provision could be used by the administration. Feinstein stated, “That law already provides the administration with flexibility . . . in times of crisis.”

In other words, the 2008 anti-trafficking law does not prevent the quick deportation of the latest group of illegal immigrants. This is a bogus excuse used by the Obama administration that many Republicans are accepting as valid. The problem is not the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008; the problem is the lawless policies of the nullifier-in-chief at 1600 Pennsylvania Avenue.

Fortunately, some in Congress are aware of the chief obstacle to border enforcement. Senator Ted Cruz (R., Texas) and Representative Marsha Blackburn (R., Tenn.), backed by Senator Sessions, have introduced legislation to prohibit federal funds from being used for any future DACA-style executive amnesties. Cruz-Blackburn, unlike Cornyn-Cuellar, gets to the heart of the border crisis — Obama’s promise of future amnesty.

Representative John Fleming (R., La.) declared that the House should not consider any legislation until three things happen: (1) Obama ends the DACA program, (2) Obama uses the “exceptional circumstances” provision in the 2008 law to deport illegal aliens, and (3) Obama sends the National Guard to the entire U.S. southern border. The entire Texas Republican congressional delegation of 24 congressmen and two senators sent Obama a letter stating: “Mr. President, you have the authority to stop the surge of illegal entries by immigrant minors today.”

Liberal George Washington University law professor Jonathan Turley (who voted for Obama) has become a leading scholarly critic of this administration’s unconstitutional executive actions. Professor Turley told the House Rules Committee, “What we’re witnessing today is one of the greatest crises that members of this body will face. . . . It has reached a constitutional tipping point that threatens a fundamental change in how our country is governed.” Indeed, government without the consent of the governed constitutes a major change in how our constitutional republic is governed and answers the question posed by Alexander Hamilton in Federalist No. 1 in the negative.

― John Fonte is a senior fellow at the Hudson Institute and author of Sovereignty or Submission? (Encounter), winner of the 2012 ISI book award for best nonfiction. 

Editor’s Note: A previous version of this piece said that DACA applied to children 18 and under. It applies to those 16 and under.