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 naïve and meaningless delusion.

Article from Hillsdale college.