Though apparently a little fuzzy on the subject of judicial review, President Barack Obama is supposed to be a constitutional scholar of some sort. On the subject of his decision yesterday to unilaterally enact sweeping changes to U.S. immigration policy on nothing but his own say-so, we would like to introduce Barack Obama to Barack Obama, who during a Univision interview just last year affirmed: “America is a nation of laws, which means I, as the president, am obligated to enforce the law. . . . There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.” A little softness in the polls and one executive order later, the president has reversed himself.
The president’s executive order will categorically prevent the deportation of certain illegal immigrants who came to the United States as children. It will also grant them work authorizations to which they would not otherwise be entitled under law. The former is unwise and the latter is illegal.
The federal executive branch, like a local district attorney or a traffic cop, has some discretion about how, when, and whether to prosecute certain violations of the law. Not every driver exceeding the speed limit by 4 mph will receive a ticket, and not every teenager caught shoplifting will face a criminal indictment. Police and prosecutors are granted some leeway in these matters — but they cannot change the speed limit or legalize theft. That requires an act of the legislature. By making the liberal use of this discretion mandatory, the Obama administration is in effect writing new law rather than enforcing existing law.
The president’s executive order reflects in no small part changes contemplated by Senator Marco Rubio’s DREAM Act and similar legislative proposals, which would allow illegal immigrants brought to this country as children, through no culpability of their own, to remain in the United States and gain access to a process for legalizing their presence. We think that this is a defective proposal, but Senator Rubio may at least be credited with appreciating that changing the law of the land requires changing the law of the land, i.e. an act of Congress. The president does not possess the constitutional authority to do what he proposes to do.
The executive may of course prioritize deportations. It is reasonable to invest more resources in deporting a narcotics cartel foot soldier than in chasing down high-school seniors who have been in the country for 99 percent of their lives. (Never mind, for the moment, the question of whether Homeland Security lacks sufficient resources to enforce the law across the board; if it did, the answer would be more resources for enforcement, something that the administration has not pursued with any vigor despite congressional solicitousness.) Prioritization is one thing; what the president does not have the power to do is to mandate across-the-board legal status for those low-priority illegals. We could, if we so chose, establish an amnesty process for legalizing those illegals we deem worthy of clemency, but to do so would require Congress to propose and enact legislation. In fact, several proposals have come up in Congress to do just that, and they have been uniformly rejected.
The president’s executive order violates the constitutional separation of powers that defines the political architecture of our republic. If Congress allows this illegitimate executive order to stand, it will have in effect delegated its power to make law to the president.
This executive order would, therefore, be entirely unacceptable even if it represented good policy. But it does not. Congress has been correct to reject earlier attempts at this sort of limited amnesty, and the American public is correct to remain generally skeptical of amnesty proposals. The amnesty proponents will of course point to any number of cases in which a young person is facing a painful situation through no fault of his own, and one would have to have a heart as hard as coffin nails not to sympathize, but the fact is that it was not the people of the United States who put these young people in legal jeopardy — it was their parents. Without first ensuring effective enforcement at the border and at the workplace, any step toward normalizing the status of those here in violation of the law invites more of the same abuse and disorder.
Further, there exists no reliable mechanism for investigating when and how these illegal immigrants entered the country. Being undocumented, as the politically correct term has it, they have in many cases little or no evidence that they did not show up in the United States the day before yesterday in full knowledge that they were violating the law.
Congress already has spoken on this amnesty proposal, and the answer was “No.” Even the president has to take no for an answer when the law requires him to. Barack Obama once knew that. He probably still does.