Did Congress Really Give the Secretary of Homeland Security Unfettered Discretion Back in 1986 to Confer Legal Immigrant Status on Whomever He Wishes?
Article publisher:
The Federalist Society
Article date:
20 February 2015
Article category:
National News
Medium
Article Body:
There has been a lot of talk about prosecutorial discretion since November 20, 2014, when President Obama announced that he was unilaterally suspending deportation proceedings against millions of illegal [alien] immigrants. Despite the President’s claim that his actions were simply “the kinds of actions taken by every single Republican president and every single Democratic President for the past half century,” whether or not prosecutorial discretion can be stretched so far is actually an issue of first impression. But as serious as that issue is, it masks a much more fundamental constitutional question about executive power, for the President has not just declined to prosecute (or deport) those who have violated our nation’s immigration laws. He has granted to millions of illegal immigrants a lawful status to remain in the United States as well, and with that the ability to obtain work authorization, driver’s licenses, and countless other benefits that are specifically barred to illegal immigrants by U.S. law. In other words, he has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly to be set by the Congress.
One thing should be clear, though. What the President announced on November 20, 2014 is simply a difference in degree, not a difference in kind, of the unconstitutional action his administration took back in 2012 when it announced, via a memo, the Deferred Action for Childhood Arrivals (DACA) program...
The President (or more accurately in this case, his Secretary of Homeland Security) in 2012 unilaterally gave effect to the DREAM Act as if it were law, and now has extended that “lawful” authorization to millions more. If the President already had the unilateral power to impose the DREAM Act and beyond, why all the angst in Congress for over a decade of trying to get the bill passed? Why did the President himself claim in 2011 that he had no such authority, when just a year later he claimed to have it?
This is not how our system of government is designed. Article I, Section 1 of the Constitution makes patently clear that “All legislative powers” granted to the federal government “shall be vested in” Congress, not the executive branch. And Article I, Section 8, Clause 4 makes clear that plenary power over naturalization is vested in Congress, not the President...
The President’s constitutional duty is to “take care that the laws be faithfully executed,” not to rewrite them as he wishes, enforce them only when he wants, and otherwise render superfluous the great legislative body of the Congress, the immediate representatives of the ultimate sovereign authority in this country, “We the People.”
President Obama was right about one thing when, in his November 20, 2014 speech, he stated: “Only Congress can do that.” Indeed, there are few areas of constitutional authority that are more clearly vested in the Congress than determinations of immigration and naturalization policy. The Supreme Court has routinely described Congress’s power in this area as “plenary,” that is, an unqualified and absolute power. But the President went forward; contradicting even his own express statements over the past four years that he did not have the constitutional authority to do this...
Congress is not without constitutional checks on a president who exceeds his constitutional authority. It has the power to impeach a lawless President, for example—an important political check to constrain what is otherwise an awesomely powerful office. It also has the power of the purse, and it can use that power to prohibit the expenditure of funds for carrying out a president’s dictate to extend work authorization to those not lawfully authorized to work...
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