Congress has proved unwilling to fight the president and stand firm for defunding his immigration amnesty plan. It appears that there is nothing this president can do, no matter how far outside his executive authority, that can goad our supine lawmakers into taking action to protect the rule of law, our constitutional system of government, or the nation’s economic well-being.
Unlawful, unconstitutional, unilateral action has become the hallmark of this president and his administration. In one action after another, he has ignored the restraints and limits imposed on the president by the Constitution, bending, changing, and rewriting federal laws according to his whim. He has “amended” Obamacare on numerous occasions, from delaying the enforcement of the employer mandate to providing federal subsidies for plans specifically excluded by the law. The U.S. Supreme Court itself struck down his unconstitutional “recess” appointments to the National Labor Relations Board in Noel Canning v. NLRB, in which the president tried to claim that he — not the Senate itself — had the authority to determine when the Senate was in a recess.
In addition to rewriting federal laws, this administration has abused its executive power by improperly asserting that prosecutorial discretion gives it a general license to ignore and refuse to enforce the law. President Obama’s Justice Department has also abandoned its duty to defend the constitutionality of laws passed by Congress and signed by prior presidents.
But it is in immigration policy that the president has most exceeded his constitutional powers. In two separate programs, he has provided “deferred action” for millions of aliens who are in the United States illegally and who are not authorized to remain under the comprehensive immigration law passed by Congress. The Legislative Branch, not the Executive, holds exclusive authority over immigration. It says so right there in Art. 1, Sec. 8 of the Constitution.
President Obama himself acknowledged that fact on numerous occasions, at one point saying, “I’m not a king . . . I can’t just make the laws up by myself.” As a federal district court in Texas pointed out in a lawsuit filed by 26 states against the administration, the president stated that he “did not have the power under the Constitution or the laws of this country to change the immigration laws.” Yet he proceeded to do exactly that, acknowledging after his latest announced amnesty policy that “I just took action to change the law.” Apparently, he changed his mind about not being a “king” and making “the laws up” by himself.
The administration isn’t just refusing to enforce the law. According to the federal court, the administration “has enacted a wide-reaching program that awards legal presence to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.” None of this is authorized by federal immigration law. Under President Obama’s direction, the secretary of the Department of Homeland Security is “not just rewriting the laws; he is creating them from scratch.”
It is hard to imagine a more substantive intrusion into the power of Congress. Immigration is not an area of shared responsibility; only Congress has the authority to make the law regarding immigration. Yet the president not only ignores existing law, he is creating his own system of immigration rules and regulations that directly violate existing immigration statutes.
Despite this, Congress appears to have provided President Obama with all the funding he needs to implement an immigration amnesty program for which he has absolutely no authority.
It’s not as if lawmakers have no choice but to bow down in the face of this lawlessness. Congress has three effective constitutional tools it can use to rein in an imperious president: 1) The Senate can put a hold on all or some of a president’s executive and judicial nominations until the president backtracks and withdraws his abusive action. The Senate is not even considering that action. 2) The Senate can impeach a president — a nuclear option that no one is seriously discussing, and not one that the country as a whole believes is appropriate. 3) Congress can exercise the power of the purse. This is the most powerful and noncontroversial tool that can be used against the president, yet Congress just threw it away by passing a Homeland Security appropriations bill that lets the president spend money on his unilateral amnesty scheme.
The Texas federal court said that the public interest “that weighs the heaviest [in this immigration controversy] is ensuring that actions of the Executive Branch#…#comply with this country’s laws and its Constitution.” By retreating from the fight to defund the president’s illegal immigration policy, many members of Congress are demonstrating that they share the president’s lack of concern for that public interest.
— Hans A. von Spakovsky is a former Justice Department official. He is a co-author of Obama’s Enforcer: Eric Holder’s Justice Department (Broadside Books, 2014).