Tis the season for executive overreach

A presidential transitioning is upon us and we all know what that means: pardons...

He’s shown that an open-borders America is core to his personal legacy, however, his dramatic push for mass amnesty has been routinely thwarted throughout his tenure. It was first rejected by Congress when they killed the DREAM Act, then by the federal courts which enjoined his administrative DAPA program. His agenda was also knocked back twice by the direct will of the American people: first in 2014 following the “amnesty” midterms...

... anti-borders groups are begging Obama to apply his pardon powers to illegal aliens just like he did with deferred action. That is, broadly, unprecedentedly, and absolutely at odds with democratic principles.

Any first-year law student, however, will see problems with this. First and foremost, the President’s constitutional pardon power under Article II §2, does not apply to deportation under immigration law as it’s a civil matter and not punishment. As the Second Circuit clearly stated in Brazier v. Commissioner of Immigration in 1924, “[a] pardon is for a crime…; inter alia, it avoids or terminates punishment for that crime, but deportation is not a punishment, it is an exercise of one of the most fundamental rights of a sovereign.” Thus, although the pardon could protect them from prosecution of their crimes in the U.S., it couldn’t grant them legal status or prevent their removal under immigration law. They also would remain unentitled to work authorization, driver’s licenses, or any other benefit...

If he were to consider the Immigration and Nationality Act (INA), one of the most comprehensive statutes in the entire U.S. Code, it would mean mass pardoning of multiple legal violations just in that statute alone.

Apart from the offenses of unlawfully entering the country without inspection or overstaying one’s visa, there’s the offense of ‘Willful failure or refusal to depart’, ‘Failing to register as an alien’ (or relatedly, failing to report themselves to an immigration official), ‘Failing to carry an alien registration document’, ‘Marriage fraud’ (which is rampant, yet never reported by the media), ‘Reentry of deported aliens’, and ‘Falsely claiming citizenship’, such as on an I-9 employment eligibility form (or similarly, making ‘Fraud and false statements’, such as providing phony documents to a border agent).

Then there’s those who’ve illegally brought in others, activities which would give rise to ‘Aiding or assisting certain aliens to enter’, ‘Unlawful bringing of aliens into the country’ and ‘Bringing in and harboring certain aliens.”

There’s also a host of fraud provisions elsewhere in the federal code and on state books (the latter which presidential pardons cannot affect), including document fraud, false birth certificates, ID document fraud, misuse of social security number, and aggravated ID theft...

Mass pardoning of illegal immigrants is surely not what the founding fathers intended...

Smith is an investigative associate with the Immigration Reform Law Institute.