THE ARSENAL OF DESTRUCTION: USURPATION OF THE POWERS OF CONGRESS; OBAMA REWRITES IMMIGRATION LAW

PART 2: EXECUTIVE BRANCH OVERREACH/USURPATION OF THE LEGISLATIVE FUNCTION BY THE UNITED STATES PRESIDENT IN CLEAR DEFIANCE OF THE SEPARATION OF POWERS DOCTRINE SET FORTH IN AND THE MAINSTAY OF THE U.S. CONSTITUTION.

SUBPART 1: OBAMA REWRITES IMMIGRATION LAW

WHAT ARE THE POWERS OF CONGRESS?

Article 1, Section 1 of the U.S. Constitution sets forth clearly, concisely and categorically: “all legislative Powers . . . shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Among those legislative Powers, Article 1, Section 8 says, “the Congress shall have Power to establish . . . a uniform rule of Naturalization.”  The term ‘naturalization’ means ‘immigration’ and the power to regulate immigration implies the power to vest citizenship in a person. This means that Congress has authority to enact federal legislation establishing the rules for naturalization and the rules for conferring citizenship. But, does this mean the President also has power to establish a uniform rule of Naturalization?

Unless specific language in the Constitution says otherwise, we must infer that Congress alone has control over immigration and the conferring of citizenship. And the Constitution does not confer control over immigration and the conferring of citizenship on any Branch of Government, other than the Legislative Branch: Congress. So, then,

WHAT ARE THE POWERS OF THE PRESIDENT?

Article 2, Section 1 says, “The executive Power shall be vested in a President of the United States of America.” Article 2, Section 3 mandates that the President “shall take Care that the Laws be faithfully executed. . . .” This means that the President has the singular duty to make sure the laws of Congress are adhered to. Nothing in Article 2 of the U.S. Constitution suggests the President shall share law making functions with Congress. Yet, President Obama says he can do this.

We must assume that President Obama, a Harvard Law School graduate and Constitutional Law Professor, has a firm grasp of the Constitution of the United States. He must know that Congress, alone, and not the President, has power to establish a uniform law of Naturalization. Yet Obama in defiance of Congress has granted, through Executive fiat, amnesty for five million illegal aliens. By that act Obama has usurped a Power that resides solely in Congress. Does that usurpation of power constitute an impeachable offense? Article 2, Section 4 makes clear that, “the President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Executive Office usurpation of the Powers of Congress certainly falls into the domain of impeachable offenses.

THE COSTS OF ILLEGAL IMMIGRATION

Contrary to Obama’s remarks about the purported benefits illegal immigrants bring to this Country, the cost to Americans is astronomical. “By some estimates, illegal immigration costs the United States $45 billion a year. Not only does society bear the financial costs of illegal immigration, but it is also burdened with the loss of jobs and a decrease in the average household income. The labor market is more than willing to hire illegal immigrants under the table to avoid paying American workers a higher wage. Many illegal immigrants, in turn, accept payment below the federal minimum wage. Consequently, American workers are forced out of their jobs and are unable to locate jobs elsewhere because the only jobs they are qualified for are being taken by illegal immigrants.” “NOTE: Taking Back the Power: Federal vs. State Regulation On Postsecondary Education Benefits For Illegal Immigrants,” Rebecca Ness Rhymer,” 44 Washburn L.J. 603 (Spring, 2005).

Moreover, most Americans oppose amnesty for undocumented workers. “Americans also feel the financial burden of illegal immigration in other areas, such as social security, criminal justice programs, housing, public education, and health care. With illegal immigration posing a threat to workers and their families, it is understandable that two-thirds of Americans oppose measures designed to make it easier for illegal immigrants to cross the borders in hopes of securing United States citizenship. In 1986, the federal government, intending to curb illegal immigration, implemented a program which granted amnesty to illegal immigrants already within United States borders and increased measures to block further illegal entry. The program sanctioned employers whose hiring of illegal immigrants spread the use of ‘forgery-proof’ residency documents. After 3.1 million illegal immigrants received amnesty, subsequent measures to enforce the program failed. The result did little to curb illegal immigration.” Id.

Notwithstanding Americans’ opposition to amnesty programs for illegal immigrants, and notwithstanding the lack of Congressional authorization to give amnesty to illegal immigrants, and notwithstanding the failure of past Congressional amnesty programs, Obama has, nonetheless, decided, unilaterally, and contrary to the authority of the Chief Executive to do so under our Constitution, to give amnesty to millions of these people anyway.

HOW OBAMA HAS REWRITTEN THE UNIFORM LAWS OF NATURALIZATION AND VESTING OF CITIZENSHIP

To understand how Obama has rewritten the uniform laws of naturalization and the vesting of citizenship we need to look at a couple of the Naturalization laws that Congress has enacted in prior years.

The idea of granting amnesty to illegal immigrants is nothing new, but Congress alone has authority to grant amnesty to illegal immigrants if it chooses to do so, not the President. While naturalization programs go back to the dawn of the Republic, Congress has most recently experimented with amnesty during the last quarter of the Twentieth Century. This was a time – continuing to the present moment – when millions of aliens have crossed and are continuing to cross the Nation’s borders illegally. Amnesty for illegal aliens took the form of providing temporary asylum for some illegal aliens. The program failed miserably as it simply encouraged rather than discouraged ever more illegal entry into the Country.  So, subsequent acts of Congress were directed to denying amnesty to undocumented aliens.

Let’s take a look at the two most recent immigration programs.

The first such fairly modern program was the Immigration Reform and Control Act of 1986 (IRCA). This Act did in fact grant temporary amnesty to certain qualifying illegal immigrants, did in fact grant permanent residency for certain qualifying agricultural workers, and did impose legal penalties on employers who hired undocumented workers. The program also funded border patrol in the hope of preventing more undocumented workers from venturing onto U.S. soil. See, generally, “Comment: Economic Effects of Immigration: Avoiding Past Mistakes and Preparing for the Future,” 14 Scholar 869 Natalya Shatniy (2012). IRCA failed because the INS was unable to satisfactorily enforce the Act. Id.

See also, “NOTE: The Political Discourse of Amnesty in Immigration Policy,” Bryn Siegel, 41 Akron L.R. (2008). “IRCA is widely recognized as a failed attempt to regulate undocumented immigration. The failure of IRCA to control illegal immigration now stands as the central hurdle in any campaign for a legalization statute.  Known commonly as the ‘first amnesty,’ IRCA has a pervasive legacy. Following IRCA, illegal immigration continued to rise and many undocumented immigrants in the United States remained without legal status when the opportunity to apply expired.  The critical failure of IRCA in terms of inspiring sympathetic supporters was the relative ease of the legalization process.”

So, Congress decided to end leniency toward illegal aliens.

Congress enacted a new immigration program: the “Immigration Reform and Immigrant Responsibility Act of 1996” (IIRIRA). Congress enacted the 1996 program, IIRIRA, to correct problems inherent in the Act of 1986, IRCA. The new program, IIRIRA, imposed stricter penalties on immigrants remaining in the U.S. after expiration of their authorized period of stay. And the 1996 Act restricted deportees from reentering the U.S. for several years after deportation. Id. The stricter penalties were designed to discourage unauthorized immigration. “Comment: Economic Effects of Immigration: Avoiding Past Mistakes and Preparing for the Future,” 14 Scholar 869 Natalya Shatniy (2012).

The 1996 IIRIRA program, together with The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), “imposed a number of restrictions on illegal immigrants’ in the United States. Specifically, Congress created this legislation to reduce the increasing availability of public benefits to illegal immigrants, which serve as incentives for keeping their illegal status.  Not only did the PRWORA and the IIRIRA restrict illegal immigrants’ access to federal public benefits, such as social security and health care, but they also restricted access to state and local benefits, including the limitation on eligibility for preferential treatment for higher education purposes.” “NOTE: Taking Back the Power: Federal vs. State Regulation on Postsecondary Education Benefits for Illegal Immigrants,” Rebecca Ness Rhymer, 44 Washburn L.J. 603 (Spring, 2005).

UNDER PRESENT LAW HOW MAY A PERSON BECOME A U.S. CITIZEN?

“There are currently four ways to become a naturalized U.S. citizen: (1) permanent U.S. residency for five years, (2) permanent U.S. residency for three years and a spouse who is a U.S. citizen, (3) serving in the U.S. Armed Forces, or (4) being a child of a U.S. citizen. The majority of immigrants become a naturalized U.S. citizen through permanent residence by obtaining a “Green Card.” A Green Card can be obtained through family, employment, asylee or refugee status, and other special programs that apply to a very small class of immigrants. In order to obtain a Green Card, you must first acquire a visa in order to enter the United States. In 2010, there were 482,052 immigrant visas issued.” See, “Comment: Economic Effects of Immigration: Avoiding Past Mistakes and Preparing for the Future,” 14 Scholar 869 Natalya Shatniy (2012).

Under present immigration law, enacted by Congress, amnesty for illegal immigrants doesn’t exist. A person who enters the U.S. in the hope of becoming a U.S. citizen must first obtain a visa. Id. That means a person must enter the U.S. legally. Visas are not issued to individuals who cross a U.S. border illegally.

WE HEAR SO MUCH ABOUT THE “DREAM ACT.” DOESN’T THE “DREAM ACT” PROVIDE AMNESTY FOR UNDOCUMENTED ALIENS?

The answer is, “no,” because it was never enacted. The Development, Relief, and Education for Alien Minors of 2010 (DREAM ACT) which is trumped up in the news – “a law that would have provided a path to citizenship for young undocumented immigrants living in the United States who succeed academically and/or through service in the United States military” – failed. See “The State of the Ordinary Family: A Symposium: Article: The Impact of Recessionary Politics on Latino-American and Immigrant Families: SCHIP Success and DREAM Act Failure,” Mariela Oliveras, 55 How. L.J. 359 (Winter, 2012).

The Development, Relief, and Education for Alien Minors of 2010 (DREAM Act) might be considered a revamped Immigration Reform and Control Act of 1986 (IRCA) that had failed decades ago. Democrats in Congress pushed for it. Understandably, Congressional Republicans pushed back. As IRCA had failed abysmally, Congressional Republicans, justifiably, saw nothing to warrant resurrecting it in the form of the so-called “DREAM Act.”

THE FAILURE OF CONGRESS TO ENACT THE “DREAM ACT” PROVIDED THE IMPETUS FOR OBAMA TO UNILATERALLY GRANT AMNESTY TO MILLIONS OF ILLEGAL ALIENS.

Frustrated that Congress wouldn’t enact the DREAM Act, Obama decided to take action without Congress — threatening to do so only after the Midterm elections, hoping that Democrats would retain control of the U.S. Senate. That didn’t happen. Realizing that the Dream Act — or some form of it — wouldn’t be enacted anytime soon, if ever, Obama decided to act on his threat.

Curiously, Obama previously admitted, correctly, that he cannot legislate where Congress fails to do so. He now argues, inconsistently, that Executive amnesty for millions of undocumented aliens falls within his purview as Chief Executive. Supporters of Obama’s action may call it “administrative expediency.” But Obama’s action amounts to an Executive Order of clemency for millions of undocumented aliens who should be deported. In effect the Order is an unlawful legislative act on the part of the Executive. It is not a legitimate administrative action. Rather, Obama’s Order is designed to thwart immigration law.

What Obama’s immigration Order says is that illegal immigrants won’t be deported if they don’t pose a threat to national security, public safety or border security. What Obama’s immigration Order means is that immigration officials are prohibited from doing their job — deporting illegal aliens. Obama believes that he has the legal authority to do this because immigration officials work for the Executive, not Congress, and because he believes that telling immigration officials not to do their job, deporting illegals, is somehow different than telling Congress straightforwardly that he won’t faithfully execute immigration law — that he won’t, then, give any thought to the intent of Congress.

HOW DOES DEPORTATION OF ALIENS WORK AND IN WHAT MANNER DOES OBAMA BELIEVE HE CAN LEGALLY OVERRIDE CONGRESSIONAL AUTHORITY?

Obama believes he can legally get around what, to his mind, is an uncooperative Congress. Obama argues he isn’t willfully disobeying Congressional authority because his immigration order only goes to the matter of deportation, not amnesty. And deportation authority, unlike the matter of granting amnesty to millions of illegal immigrants, is an Executive function. So Obama is trying to make the case that he isn’t really giving amnesty to millions of illegal immigrants at all. He is simply not enforcing deportation. Indeed, “the most common form of protection {for illegal immigrants} has been the non-enforcement of deportation rather than the grant of a specific temporary status.” See, “ARTICLE: Temporary Protection: Towards a New Regional and Domestic Framework,” Susan Martin, Andy Schoenholtz, and Deborah Waller Meyers 12 Geo. Immigration L.J. 543 (Summer, 1998).

This is just equivocation. Whether Obama, on his own, were actively to bestow amnesty on millions of illegal immigrants (in effect, wrongly invoking Executive clemency for illegal immigrants by implicitly rewriting present immigration law) or simply were to order his  immigration officials to refrain from enforcing deportation rules, Obama is telling illegal immigrants that they can stay in the United States. In fact Obama has ordered immigration officials to stop deporting millions of illegal immigrants whom Congress has dictated, through present immigration law, must be deported. Obama is thus telling millions of illegal immigrants that  they need not fear deportation because immigration officials will not deport them, as immigration officials have been ordered by Obama not to deport them. However one chooses to describe Obama’s action here, Obama has clearly thwarted the will of Congress. That is obviously Obama’s intention and that is certainly what he has done. That will certainly make millions of illegal immigrants happy. But whom does Obama, as President of the United States, represent: illegal immigrants or bona fide American citizens? And, whose welfare is Obama, as President of the United States, supposed to be concerned with: the welfare of illegal immigrants or the welfare of bona fide American citizens? It appears that Obama is concerned more for the welfare of  people who ought not remain in this Country, who should never have come to the Country in the manner they did — in defiance of our laws, exhibiting contempt for our People — and he seems concerned less for the welfare of bona fide American citizens. Illegal immigrants are not honest, law-abiding people. Their very presence here is a testament to their disrespect for our laws, our culture, our citizenry. Obama caters to that!

Moreover, through his actions, Obama hasn’t merely condoned illegal immigration, he has actively encouraged it. And he is inviting more of the same.

Americans will see millions of illegal immigrants flooding across our borders in the future, many more from Mexico, from Countries of Central America, from Countries of South America, and from Countries around the world. This is just what Congress — Congressional Republicans at least — sought to prevent enactment of IIRIRA in 1996.

Obama’s action undermines America’s immigration laws and constitutes a direct challenge to the authority and power of Congress, under the U.S. Constitution, to establish the rules of Naturalization and Citizenship for all Americans. And, what does Obama’s action say to foreigners who have waited for years to become American citizens, through proper legal channels, through adherence to the rule of law? What does Obama’s action say to the  millions of Americans whose grandparents and great grandparents came to this Country legally through Ellis Island? How much respect can a person have for a Country’s rule of law when that person has already broken the Laws of the Land through illegal entry into this Country? Such a person doesn’t care. And Obama doesn’t care either.

Obama says his policy will not prevent the deportation of  “criminals.” That is an incongruous remark since all illegal immigrants are by definition criminals. The phrases, ‘illegal entry’ and ‘illegal reentry,’ denote ‘crimes’ under U.S. immigration law. For a historical perspective on this, see, generally, “Article, Re-thinking Illegal Entry and Reentry,” Doug Keller, 44 Loyola U. Chi. 65 (Fall 2012)

What Obama is doing, essentially, is pushing the DREAM Act through by Executive Action/Executive fiat since Democrats in Congress were unsuccessful in their efforts to enact the DREAM Act. Indeed, his action, tying the hands of immigration officials so they aren’t permitted to do their job, deporting millions of illegal immigrants, extends the Dream Act well beyond what even the Dream Act was designed to do if Congress had enacted it.

OBAMA HAS NOT ACTED ALONE

To Argue Obama has acted alone in granting amnesty to millions of illegal immigrants is not precisely true. Congressional Democrats encouraged the President to act and, in so doing, they, too, have acted
irresponsibly. Moreover, these elected officials have undermined their own authority. They have undermined the authority and power of  Congress as an independent Branch of Government — a Branch critical to the operations of and well-being of the Republic. Their action constitutes a betrayal to the American public they were elected to serve.

Congressional Democrats complicity in the President’s action is clearly in evidence. Consider: “In April 2011, Senator Harry Reid (D-NV) and twenty-one other Democratic senators published a letter they sent to President Barack Obama urging him to use executive discretion and authority to stop deportations and removals of undocumented young people-who grew up in the United States or have been residing in the United States for many years-who would have benefitted from the DREAM Act.” See, “Symposium: Noncitizen Participation In The American Polity: Dreams Deferred: Deferred Action, Prosecutorial Discretion, And The Vexing Cases(s) Of Dream Act Students, Michael A. Olivas, 21 Wm. & Mary Bill of Rights J. 463 (December, 2012).“The Obama Administration has apparently determined that any forms of immigration reform will have to be modest, and in the nature of non-legislative, adjudicatory, administrative review and discretionary deferred action.” Id.

Deportation of aliens is an Executive function to be sure. But, that does not mean the Chief Executive – the President – can take it upon himself unilaterally to suspend deportation of millions of illegal aliens. That is an abuse of Executive discretion because deportation is a tool that Congress uses to effectuate the laws it has enacted. It is not a device to be used by the Chief Executive to thwart the will of Congress.

Still, Congressional Democrats persevered in their own irresponsible actions. Senator Charles (“Chuck”) Schumer wrote a personal letter to then Secretary of the Department of Homeland Security, Janet Napolitano, attempting to pressure her to exclude millions of illegal aliens from deportation. But, Napolitano, a lawyer herself, responded with a letter of her own, barely containing her anger, “insisting that no category of Prosecutorial Discretion (PD) would be employed for groups of individuals: ‘I am not going to stand here and say that there are whole categories that we will, by executive fiat, exempt from the current immigration system, as sympathetic as we feel towards them.’” Id. Yet, three years later, we find Obama compelling Executive departments and Agencies to do just that: defying Congressional Mandate by excluding entire categories of individuals – literally millions of them – from deportation.

OBAMA HAS PREVIOUSLY EXPERIMENTED WITH AMNESTY

On June 15, 2012, Obama initiated a new policy, providing temporary amnesty to 800,000 illegal immigrants who came here as children — a policy known as “Deferred Action for Childhood Arrivals” (DACA). “Note, ‘You may say I’m a Dreamer, but I’m not the Only One,’ a1: Categorical Prosecutorial Discretion and Its Consequences for US Immigration Law,” Maria A. Fufidio, 36 Fordham Int’l L.J., 976 (June, 2013).  Opposition to DACA came not only from Republicans in Congress but from State governments and even from agents within the Department of Homeland Security. Id.

What does DACA do? DACA “defers removal action for two years and provides individuals with work authorization if they meet other eligibility criteria for eligibility.” Id.

We now see what DACA really was and where DACA was obviously headed: universal amnesty for millions of illegal immigrants. The President’s DACA policy was, then, merely a dress rehearsal for his latest initiative. For, where DACA granted temporary amnesty to 800,000 illegal immigrants, the President has now granted amnesty to 5 million illegal immigrants. It would not be a stretch to infer from the President’s actions, that he intends, ultimately, to bestow amnesty to the 11 million plus illegal immigrants who currently reside on U.S. soil and to the thousands  — perhaps millions  more — who are crossing U.S. borders today and who, undoubtedly, will continue to cross U.S. borders and enter our ports, illegally, in the coming weeks, months, and years.

WHERE DOES ALL THIS LEAVE CONGRESS AND THE AMERICAN PEOPLE?

Not surprisingly, Senate and House Republicans are livid and the American public should sound off too.

It may be academic why Obama waited almost three years to thwart the will of Congress. Likely, Obama hoped that Congress would enact the DREAM Act or something like it. Pressured by House and Senate Democrats, and by millions of undocumented aliens who shouldn’t have a voice at all, Obama decided to usurp the authority of Congress. Even now Obama says a Congressional enactment on immigration would override his Executive action. So saying, Obama is admitting he has usurped the authority of Congress. Moreover, immigration legislation already exists. That legislation does not provide for general amnesty. Obama doesn’t like it. Democrats in Congress don’t like it. And eleven million plus illegal aliens don’t like it. But most Americans — bona fide citizens — do like it. And it is the law.

Obama likes to blurt out slogans. He says the present immigration system is broken. But, is it? What does he mean by the word, ‘broken?’ Does he mean the system is broken because it doesn’t sanctify the presence of “border jumpers” in the U.S.? One might say, just as nonsensically, that our criminal justice system is broken because it preys on individuals who commit crimes.

Apparently, illegal immigrants, some members of Congress, and the United States President believe they can, together, thrust their will on the American People, contrary to the import and purport of the United States Constitution and contrary to the authority of Congress, which alone, has power, under the Constitution, to establish the laws of naturalization and citizenship. Hopefully, some members of Congress will remember where their duty rests.

WHAT LIES AHEAD FOR THE AMERICAN PEOPLE

The American People must understand that usurpation of the U.S. Constitution – even by those who believe, possibly, they are acting with the best of intentions – undermines the Republic. The Obama Administration is testing the waters by granting amnesty to millions of illegal aliens, contrary to dictates of the present immigration law. But, Obama is testing the waters in ways far beyond the issue of immigration.

If Congress fails to take strong measures against the Obama Administration and fails to do so immediately, then precedent will exist for further encroachment upon the Powers of Congress.

Would a President dare to argue, for example, the First Amendment, Second Amendment, or Fourth Amendment Rights might be legally curtailed on the ground of a President’s personal convictions? We see an inkling of this — and in matters of Fourth Amendment privacy rights, more than an inkling — even now. If a President believes his Office is unassailable and that he, personally, is invincible, then the Rule of Law ceases to exist; the Constitution weakens; the Republic falls.