There is high anxiety over President Obama’s impending unilateral amnesty order for millions of illegal aliens. How many millions? The estimates vary. On the low end, 3 to 8 million, assuming some correlation to the potential beneficiaries of the president’s already existing amnesty decrees (including DACA or Deferred Action on Childhood Arrivals). On the high end, as many as 9 to 34 million, factoring in likely categorical expansions of amnesty and their ramifications over the next several years.
The anxiety stems from a remorseless truth that no one — most especially Mr. Obama’s most ardent detractors — wants to confront. It is the truth I have addressed, to much groaning and teeth-gnashing, in Faithless Execution, my recent book on presidential lawlessness.
To hear the demagogue-in-chief tell it, the controversy over how to deal with the approximately 12 million illegal aliens currently in the U.S. is a Manichean debate between enlightened humanitarians and vulgar xenophobes. (To be fair to the president, he is far from alone in peddling this smear.) But objections to Obama’s reckless immigration policies — indeed, to his policies in general, as this week’s historic election reaffirmed — cut across party and philosophical lines.
To be sure, the most intense protest is heard in “restrictionist” circles and among those for whom rule-of-law and national-security concerns trump sympathy for the plight of legions of decent but unlawfully present non-citizens (some of whom were brought here as children and are blameless for their illegal status). There are also, however, many enthusiasts of immigration amnesty — the euphemism is legislative “reform” — who recognize that the president’s sweeping, dictatorial approach is angering the public. That damages not just the cause but the career prospects of those who’ve made the cause their own.
As Faithless Execution recounts, the delegates at the 1787 Philadelphia convention included impeachment in the Constitution because they believed it to be “indispensible” (as Madison put it) to preventing the abuse of executive power. Congressional authority to remove a president would be a decisive check. Still, the Framers reckoned it would rarely be invoked.
To turn back most instances of executive overreach, less drastic remedies would do the trick. The ballot box, for one: The Framers high-mindedly assumed that an imperious, corrupt, or incompetent candidate would not be elected, much less reelected. In addition, the power of the purse would enable Congress to cut off the funds a president would need to carry out reckless or lawless enterprises; and requiring Senate approval of presidential appointments would give lawmakers additional leverage to bend the president into compliance with the law and the public will.
But here’s the problem: Obama has no more elections to worry about; and, other than impeachment, the rest of the arsenal designed by the Framers is impotent when it comes to most of his immigration scheme.
That scheme implicates three closely related but importantly distinct considerations: the lawless status of the aliens in question; non-enforcement of the immigration laws against them; and the conferral of legal status on them. On the first two, the president’s power to forgive law-breaking and refrain from law-enforcement is plenary. The abuse of these powers is essentially irresistible . . . except by impeachment. As for the third consideration, even though the president has no direct power to confer legal status or benefits (e.g., work permits) on aliens, that technical deficiency could be overcome by the abusive exploitation of the aforementioned powers he undeniably has.
I acknowledge in Faithless Execution that to refrain from invoking impeachment as the credible threat the Framers intended it to be is a rational political choice. My point is that it is a choice fraught with consequences. We have to face those consequences. We don’t get to avoid them by being reasonable, moderate people who recoil from the I-word. Nor, in the matter of illegal immigration, is there any funding cut or loopy congressional lawsuit that can dissuade this president. There is either a credible threat of impeachment or a transformational mass-amnesty. That’s it.
Executive Order Confusion
The public debate over Obama’s anticipated amnesty proclamation has wrongly focused on executive orders. So sullied has this term become that it is now a standard talking-point of Obama apologists that he has issued fewer such directives than his predecessors. It is a red herring.
There is nothing wrong in principle with an executive order — no more than there is with a statute. Congressional laws are problematic only when they exceed Congress’s powers in violation of the Constitution. Same with executive orders: The president’s powers are broad, the executive branch through which he exercises them is extensive, and there is consequently nothing improper in his issuance of executive orders to manage the conduct of legitimate executive functions — just as there is nothing invalid in Congress’s enactment of statutes consistent with its capacious constitutional authorities or a court’s issuing rulings within its proper jurisdiction.
Executive orders are offensive only when the president employs them to usurp the powers of the other branches — in particular, the legislative authority of Congress. If the president issued an executive order directing the IRS to collect taxes on a rate-schedule he unilaterally prescribed, that would be a serious violation of law. The fact that there was only one such executive order rather than, say, 500 would be quite beside the point.
With that backdrop, let’s go back to our three considerations in the immigration context.
1. Lawless Status of the Aliens.
The Constitution vests the president with “Power to grant Reprieves and Pardons for Offenses against the United States.” It is an awesome power — wholly unreviewable and nearly limitless — although one explicit limit is crucial, and we’ll get to it in due course.
Any offense against federal law is subject to pardon, and the Supreme Court has held since the Civil War that pardons remove “any of the penalties and disabilities” that would flow from a conviction. In fact, nothing in the Constitution prevents a president from pardoning his own law-breaking. The pardon power does not apply prospectively — the president may not license future law-breaking. But once the law has been broken, the president can pardon the offense; there is no need for an investigation to have occurred, much less a prosecution or conviction.
Pardons, moreover, need neither be individualized nor actually sought by the person to be pardoned. As George Mason law professor James Pfiffner recounts in the Heritage Foundation’s excellent Guide to The Constitution, President Washington granted a blanket amnesty to collaborators in the Whiskey Rebellion; Presidents Lincoln and Johnson pardoned pro-Confederacy seditionists. On his first day in office in 1977, President Carter fulfilled a campaign promise by pardoning hundreds of thousands of Vietnam draft evaders.
It is occasionally claimed that illegal immigration is beyond the pardon power because it is “civil” wrong not a criminal offense. This contention is largely incorrect, and it rests on a dubious assumption. Illegal entry into the United States is a criminal offense, albeit a misdemeanor. Reentry after deportation is a felony. And illegal aliens often commit various crimes to sustain their unlawful presence in our country. It is certainly true that an alien’s being unlawfully present in the United States — for example, overstaying a visa or remaining here after illegally entering — is a civil violation, not a criminal one, but it is serious enough to render an alien deportable. The Constitution, in any event, enables a president to pardon federal “Offenses” — it does not say criminal offenses. While it is a reasonable deduction that the Framers’ use of the word “offense” was meant to imply crimes, not civil wrongs, why should we assume that federal courts now stacked with Obama-appointed judges would see it that way? Why should the word offense be any less “organic” than, say, the term equal protection of the laws? Besides, the point of a blanket pardon would not be to confer lawful status on the aliens, something the president has no power to do. The point, as we shall see, would be to pave the way for the courts to finish the job.
Thus, fully within his constitutional authority, President Obama could, right this minute and without any congressional approval, pardon every illegal alien in the United States — indeed, every illegal alien anywhere who has been deported after violating federal law. He could do it by executive order and, while outrageous and condemnable, it would indisputably be within his Article II power. (As I have been pointing out since before Obama’s 2008 election, his longtime friendship with former terrorist Bill Ayers is rooted in their shared radical notions about the American criminal-justice system — which Ayers, in a book Obama gushingly endorsed, condemned as the racist equivalent of Apartheid South Africa. If I were in Congress right now, I’d be asking the Justice Department a lot of questions about preparations for pardons in Obama’s last two years. If you’re a convict not named Dinesh D’Souza or Nakoula Basseley Nakoula, I imagine you’ve got a shot.)
2. Non-enforcement of the Immigration Laws
As I explain in Faithless Execution, while the Constitution grants much raw power to the president, it also constrains its exercise by placing limits on the legitimate uses of executive authority. A textbook example of illegitimate exercise of a legitimate power is Obama’s abuse of prosecutorial discretion.
Prosecution is an awesome executive power. The Framers realized that, throughout history, the joinder in a single official or governing body of the powers to make law and to prosecute was the road to tyranny. So they took pains to separate legislative and prosecutorial authority. The executive branch was given plenary authority over federal law-enforcement: It is entirely up to the president and his Justice Department subordinates to decide what offenses and offenders will be investigated and prosecuted. Congress can try to pressure and prod, but it has no ability to coerce the Justice Department to enforce laws. (It is worth noting that the just-described sweep of the pardon power similarly reflects the Framers’ purposes to divide law-making from law-enforcement and to check potential legislative overreach.)
Pre-Obama, prosecutorial discretion was understood as an unremarkable resource-allocation doctrine specific to the criminal law. Enforcement resources are finite. It is neither possible nor desirable to prosecute every single violation of law. Therefore, policymakers, prosecutors, and police must exercise judgment about which violations merit attention and which ones can be overlooked. Mind you, the overlooking does not excuse the law-breaking; it is simply a concession to reality — there are more pressing threats to society than pot-smoking, petty fraud, etc.
Obama, however, has contorted prosecutorial discretion into a license to ignore, “waive,” rewrite, and otherwise violate congressional statutes — including laws such as the Affordable Care Act that are far afield from criminal-law enforcement. In sum, “prosecutorial discretion” has become the camouflage for Obama’s usurpation of the powers to write and conclusively interpret the law — powers the Constitution vests in Congress and the courts.
Faithless Execution outlines a litany of Obama-administration directives that the immigration laws go unenforced. In combination, they already amount to a large-scale amnesty. This, like abuse of the pardon power, can rightly be described as outrageous and condemnable. But, once again, such executive orders are indisputably within the president’s Article II power in the sense that neither Congress nor the courts can compel him to enforce the law.
3. Conferral of Legal Status
Under the Constitution, the power to determine the qualifications for American citizenship is legislative. Obviously, Congress’s prescriptions must be signed by the president to become law (unless lawmakers have the numbers to override a veto). The president, however, has absolutely no authority to confer legal status or positive benefits (e.g., work permits) on aliens who are in the United States illegally. If the president attempts to do this by executive order — and, as Faithless Execution recounts, Obama has already done it, albeit on smaller scales than what is now being contemplated — that would patently exceed his authority, in violation of both the Constitution and statutory law.
But it is never that simple, is it? Let’s say Obama pardoned some millions of illegal aliens. The effect of a pardon is to expunge a violation of the law and its attendant effects. In the eyes of the law, it is as if the offense never happened.
Well, the legal and moral case against conferring legal status on illegal aliens is that doing so would excuse their law-breaking, encourage more law-breaking, and give the lawbreakers an unfair preference over aliens who have tried to immigrate lawfully. But a pardon would thrust us into a legal fiction in which we’d have to pretend that the aliens had never broken our immigration laws in the first place. What, then, would remain of the rationale for complaining about the preference given law-breakers over law-abiding aliens? Or for continuing to saddle the aliens with illegal status? Anyone want to bet me on how the nearly 400 judges Obama will have put on the federal bench by 2017 would come out on those questions?
If the president refuses to enforce the immigration laws and grants something close to a blanket amnesty, we will be on an inexorable course toward citizenship — and, crucially, voting rights — for millions of illegal aliens, also known as Democrats waiting to happen. It is the Left’s dream of a permanent, unassimilated, post-American governing majority.
Is that where we are headed?
Abuse of Power and Impeachment
As we noted earlier, the president’s pardon power is nearly limitless. There is a single exception, explicit in the Constitution’s Article II, Section 2: “Cases of Impeachment.”
The president can prevent incarceration and other legal punishments for any unlawful acts; but he cannot prevent impeachment — his own or any other official’s — based on the abuses of power that flow from those acts. Impeachment is a political remedy, not a legal one. It is about the removal of political power because of breaches of the public trust, not legal prosecution and punishment. Indeed, the Framers considered narrowing the pardon power to prevent the president from granting amnesty for his own lawlessness; they opted against it precisely because they believed the specter of impeachment would be sufficient disincentive.
As we’ve seen, the president’s pardon and prosecutorial powers are formidable. They do not, however, exist in a vacuum. They exist in a constitutional framework wherein the president’s core duties are to execute the laws faithfully and preserve our system of government. The fact that an act is within a president’s vast lawful power does not make it a faithful, constitutionally legitimate use of that power. As Faithless Execution elaborates, an act need not be criminal or indictable in order to be impeachable. There is far more to fiduciary responsibility than acting within the margins of technical legality.
To offer an analogy, a judge who sentenced a defendant to 20 years’ imprisonment for handing someone a single marijuana cigarette would be imposing a legal sentence (i.e., within the governing statute) but would demonstrate himself unfit to be a judge. Likewise, lawmakers have the power to impose a 100 percent tax on income, but doing so would be an intolerable abuse of power. Similarly, a president who uses the pardon power and prosecutorial discretion as pretexts for usurping Congress’s power to make immigration law, for encouraging law-breaking, and for remaking the country in a manner that imperils the economic and security interests of American citizens, commits grievous impeachable offenses.
To be blunt, there is no real power-of-the-purse check on the president’s pardon power. Congress could threaten to withhold funds necessary for other Obama agenda items in an effort to discourage a blanket amnesty — although it would not be a very credible threat with the soon-to-be Senate majority leader having already pledged to refrain from using Congress’s control of the purse-strings as leverage. But let’s face it: While many of his abuses of power cannot happen without congressional funding, the president doesn’t need a dime to pardon people. He doesn’t even need his phone — just his pen.
The only real check on the pardon power is impeachment.
At this point, would a credible threat of impeachment be much of a check on this president’s designs? I’m not sure. Obama’s stated goal is fundamental transformation of the nation, and a blanket amnesty would accomplish that. From his standpoint, it might be worth the risk. Plus, even if the amnesty suddenly ignited public sentiment for the president’s removal from office (a dubious supposition), nothing in Washington happens quickly. Obama would still have many months if not most of the rest of his term to abuse his awesome powers (including by issuing additional pardons) in transformational ways.
But I do know this: Absent a credible threat of impeachment, President Obama cannot and will not be stopped from granting amnesty to millions of illegal aliens, who will in short order be awarded citizenship and voting rights. You can call that a plea for impeachment if you’d like. I call it a statement of fact.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.