Monday, December 21, 2015

Interesting times.

The lesson from the last 20 years of immigration policy is that lawlessness breeds more lawlessness. Once a people or a government decides to normalize one form of lawbreaking, other forms of lawlessness will follow until finally the rule of law itself is in profound jeopardy. Today, we have a constitutional crisis on our hands. President Obama has decided that because Congress has not granted amnesty to millions of illegal aliens living in the U.S., he will do so himself.

Article 2, Section 3, of the Constitution mandates that the president “shall take Care that the Laws be faithfully executed.” This provision assumes that there is a law for the president to execute. But in this case, the “problem” that Obama is purporting to fix is the absence of a law granting amnesty to millions of illegal aliens. Rather than executing a law, Obama is making one up—arrogating to himself a function that the Constitution explicitly allocates to Congress. Should this unconstitutional power grab stand, we will have moved very far in the direction of rule by dictator. Pace Obama, the absence of a congressional law granting amnesty is not evidence of political failure that must somehow be corrected by unilateral executive action; it is evidence of the lack of popular consensus regarding amnesty. There has been no amnesty statute to date because the political will for such an amnesty is lacking.

On February 16, U.S. District Judge Andrew Hanen halted President Obama’s illegal amnesty with a temporary injunction. The proposed amnesty program, Judge Hanen found, went far beyond mere prosecutorial discretion not to enforce the law against individuals. Instead, the Department of Homeland Security proposed to confer on illegal aliens a new legal status known as “legal presence.”

But Congress has not granted DHS the power to create and bestow legal status. The amnesty program represented a “complete abdication” of DHS’s responsibility to enforce the law, Judge Hanen declared. Indeed, DHS was actively thwarting the express will of Congress.

Pursuant to traditional canons of judicial interpretation, Judge Hanen ruled against the Obama administration on the narrowest possible grounds in order to avoid reaching the constitutional
question. He based his decision on the law governing agency rulemaking, rather than on separation of powers grounds. But his rebuke was just as scathing.

The administration will likely fight the ruling through the Fifth Circuit Court of Appeals and, if necessary, all the way to the Supreme Court. Democrats should hope that the administration loses. They are assiduously pretending that Obama’s executive amnesty is merely an innocuous exercise of prosecutorial discretion. But if Obama’s power grab is upheld, they will rue the day that they acceded to this travesty when a Republican president decides, say, to privatize Social Security because Congress has failed to do so.

Obama’s executive amnesty is the most public and egregious example of immigration lawlessness to date. But beneath the radar screen has been an equally telling saga of cascading lawlessness that is arguably as consequential: an ongoing attack on the Secure Communities program and on deportation more generally. Because of this attack, the rallying cry of so many conservatives that we must “secure the borders” is a na├»ve and meaningless delusion.

Article from Hillsdale college.


  1. America is under attack most notably by people in America that call themselves moderates; people who are willing to find a middle ground in anything even though 1) the best answer may not and most often is not in the middle and 2) more than willing to compromise on issues taken on (taken over) by the national government by way of precedent, court stacking or executive action in direct contravention of any reasonable reading of the constitution. The words enumerated powers are 100% superfluous in today’s world yet people continue to talk about compromise… you cannot compromise over something that should never be discussed in the first place and you cannot discuss something unless it is allowed for in the constitution… the constitution has a mechanism for decisions so sweeping as to change the character of the country.

    It is perfectly reasonable that people over time might want a heavily socialist state but those desires for state interference and control should be reflected in the constitution. Compromise is a wonderful thing but you can’t and shouldn’t compromise over something that shouldn’t even be up for discussion… Anything else is an erosion of the rule of law.

    First progressives sought powers within the social arena that had no place in national government. Having gotten away with that, creation of war time presidents like Wilson or FDR all the time was inevitable….

  2. That the people would accept the president making laws he wants via Executive Orders and refusing to enforce laws which is what he signed up for reprehensible.
    At one time not to long ago people would have been outraged and demanded he go. Today we are a fat, dumb happy people watching our imported TV's eating our junk food all compliments of the same government.
    Few people care or even know the president is outside the scope of his power per the constitution. The dumbing down of America continues.