President Barack Obama’s executive orders suspending enforcement of the deportation laws for categories of persons unlawfully present in the United States flout his constitutional obligation to “take care that the laws be faithfully executed.” A lawsuit to challenge the unconstitutional suspension is problematic. Justice is lead-footed, and technical issues like “standing” or “political questions” might frustrate a judicial ruling on the merits.
But Congress can defeat Mr. Obama’s lawlessness without a budget crisis or government shut down.
Upon convening under Republican control next Jan. 3, it should enact a statute prohibiting the president from suspending enforcement of the deportation laws for categories of undocumented aliens through executive orders, agency directives or otherwise.
The statute should apply retroactively to nullify everything Mr. Obama has done before its enactment. That would include the June 15, 2012, Department of Homeland Security directive suspending deportation for undocumented aliens who arrived under age 16 and are not older than 30, have continuously resided in the United States for five years, are enrolled or have graduated from high school, and have committed no serious criminal offense.
The U.S. Supreme Court held in Galvin v. Press (1954) that new deportation rules may be applied retroactively without violating the constitutional proscription against ex post facto laws.
The statute should further stipulate that any Executive Branch action initiated for the purpose or with the effect of circumventing the objective of the new law is null and void.
Mr. Obama would pay a stiff political price if he vetoed the statute, whether or not two-thirds majorities could be assembled in the House and Senate for an override.
His categorical suspension of deportations is unfaithful to his constitutional obligation to enforce the laws. It is derived from the English Bill of Rights of 1689. It provided, among other things, “That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.”
The president’s executive orders or directives are also contrary to customary prosecutorial discretion. They promise in advance to millions of undocumented aliens who fit within the exempt categories that they will not be deported. That is the opposite of case-by-case determinations which earmark prosecutorial discretion, and which are not declared before decisions have been made through a presidential megaphone.
The prior deportation exemptions for 1.5 million undocumented aliens decreed by Presidents Ronald Reagan and George H.W. Bush do not save the constitutionality of Mr. Obama’s actions. Repetition does not make constitutional what is unconstitutional. Thus, the Supreme Court denied President Richard Nixon’s constitutional claim of executive privilege to withhold presidential tapes and documents from special prosecutor Leon Jaworski in United States v. Nixon (1974) despite a long historical pedigree. The high court also invalidated the legislative veto in INS v. Chadha notwithstanding its routine use to check executive action for 60 years.
Neither can Mr. Obama argue emergency circumstances. Immigration issues — including the more than 11 million undocumented aliens — have been before the nation for decades. There is no immigration crisis. The sky is not falling down. If it were, Mr. Obama would have acted long ago in lieu of waiting for a what he perceives as a politically opportune moment to strike.
His deportation directives are also unfair. Aliens who have stood in line for proper entry documents are treated less favorably than are aliens who violated the law. Nothing good can come from making illegal conduct profitable.
If Mr. Obama’s non-enforcement of the deportation laws stands, a precedent will have been set that will lie around like a loaded weapon ready for use by any president who wishes to cripple laws he dislikes. The individual mandate of the Affordable Care Act could be nullified by a directive to the Internal Revenue Service (IRS) prohibiting the imposition of fines or taxes for non-compliance.
The Voting Rights Act could be partially repealed by a directive to the Department of Justice against enforcement actions in any jurisdiction with less than 250,000 registered voters. Anti-merger laws could be voided by a directive to the department’s Antitrust Division to initiate enforcement proceedings only against price-fixing.
Congress has only itself to blame for Mr. Obama’s latest sneer at the Constitution. His prior constitutional transgressions relating to illegal wars, drone killings of American citizens, detentions without accusation or charge, unlawful surveillance of the entire U.S. population, ad infinitum have passed unrebuked and unchallenged.
As the Bible teaches, “for whatsoever a man soweth, that shall he also reap.”
For more information about Bruce Fein, visit brucefeinlaw.