News from the After-my-reelection-I’ll-have-more-flexibility department: I was recently on a panel discussion with a leading open-borders activist and he said something that perked up my ears. As background, Utah passed a state-specific amnesty bill through which illegal aliens would be given state-generated work cards. Obviously, such a thing is unconstitutional on its face, since it contradicts federal law barring the employment of illegal aliens, unlike the Arizona or Alabama laws, which merely buttress existing federal law. For that reason, the Utah law requires a congressional “waiver” for the state-specific amnesty to go into effect, though no such waiver mechanism exists. It was basically a gimmick, designed to create political momentum for amnesty in Washington.
But, the open-borders advocate I mentioned above suggested that California may consider such a measure after Obama’s reelection, with the understanding that the administration would exercise “prosecutorial discretion” and decide to ignore illegal aliens who have the state work cards — a de facto waiver contrary to statute. The analogy was made to medical marijuana, where California has legalized it, while the feds fight back against it.
While I favor the legalization of marijuana, this is hardly a good model for state/federal relations. In fact, this approach to the amnesty issue would be worse than medical marijuana, in that the federal authorities would be conspiring with the states to render Congress’s lawmaking power a nullity. The administration’s current prosecutorial-discretion approach is bad enough, representing an attempt at a de facto amnesty for non-violent illegal aliens. But at least that’s based on some plausible criteria for prioritizing offenders, though its systematic nature is clearly designed to render immigration violations a secondary offense. Applying federal “prosecutorial discretion” based on state issuance of amnesty cards would represent an unconstitutional executive usurpation of legislative power so sweeping as to rival the courts’ usurpation of legislative power in Roe v. Wade. If the administration actually attempts such a thing, Congress will have to finally decide whether it actually wants a role in governing this republic or whether it is, as Gibbon described the Roman Senate during the Empire, “a venerable but useless monument of antiquity on the Capitoline hill.”