By Robert Charles - November 17, 2014
Understanding why
pending executive action by President Obama on immigration, residency, and
citizenship are objectionable, imprudent, and unconstitutional – and what can
be done legally and politically about them, if he proceeds – requires a
snapshot of history and law.
Ten arguments stand
between the president and such bold, unilateral actions.
First, executive
directives of all kinds – and some have been creative – started with George
Washington. They are theoretically justified by the indeterminate
“executive powers” vested in each commander in chief by Article II of the U.S.
Constitution. Their legal justification begins and ends there, and is
necessarily nested in a larger constitutional text and intent, which has always
favored avoiding unilateral executive actions unless absolutely necessary (as
for national security). Thus, unless ceremonial or peripheral, the
justification for directing agencies one way or another has been to clarify a
law – never to create one.
So, here is the rub.
Since the over-assertion of executive powers by Franklin D. Roosevelt (FDR),
the U.S. Supreme Court and federal appellate courts have ruled unconstitutional
any Executive Order (EO) that seeks to usurp or effectively legislate where
Congress has spoken or reserves the right to speak.
Thus, for example, the
U.S. Supreme Court overturned five of FDR’s EOs (6199, 6204, 6256, 6284 and
6855) for overreaching. Similarly, the Court threw out President Truman's
EO 10340, in which he attempted to control the country’s steel mills to put
down labor strife. The Court was clear: the EO sought to make law, not
clarify it. Again, an appellate court confidently nixed President
Clinton’s EO 12954, which sought to prevent federal contracting with those who
hire strike breakers. In the last case, an obvious conflict with existing
law invalidated the EO.
Now we come to
today. The first three arguments
against the Obama EO are simple, and should be swiftly confronted in court if
he issues broad executive action bestowing new rights on those otherwise not
entitled to them under existing law or patently misinterpreting existing law to
serve a political end, such as altering
the process of citizenship. In sum, if he:
(one) obviously exceeds all formerly accepted constitutional authority,
(two) seeks to legislate where the law is already clear or is clearly
the province of Congress, or
(three) intentionally disregards the law, the EO should be legally
discarded, or viewed as “void ab initio” – that is, of no credibility or force.
Four: If you issue an EO making permanent residents or citizens out of
a significant number (say, five to seven million) illegal, unentitled, or
“undocumented” foreigners on U.S. soil, you are instantly obligating federal
taxpayers and states to afford these newly minted “Americans” or “newly legal
residents” any number of privileges, entitlements, and rights not previously
held, above and beyond not being deported. This plainly costs taxpayers
and States money, offering them every reason to appeal the decision and
apparent standing to do so.
Next, there is the
prudential side of the ledger.
Argument five: If you issue an EO that instantly grants “stay and work” status
to currently illegal aliens, even if they have legal relatives, you instantly
soak up part of the job pool from which real Americans are hoping to gain
employment. In effect, you hammering the working-class Americans again.
Six: If you issue this EO, you instantly send an international
message – a new and shocking invitation: “We just gave away the citizenship or
residency farm – so please line up or flood over and come get yours.” In
effect, such an EO will trigger multiple future waves of illegal migration for
economic purposes by new and unconnected illegal aliens who see that our laws
are not being honored, and so they will come for free entry, too – if not at
once, then soon enough.
Seven: For every justification based on an illegal alien having a legal
U.S. relative, we can now expect that the same argument will be made by the five
to seven million newly minted “instant citizens” or “instant legal
residents.” In short, one thing all members of humanity – those legal and
illegal – have in common is relatives. Once all those here illegally with
relatives make their relatives legal, the newly legal (and formerly illegal)
relatives will now declare that they, wonder of wonder, also have relatives –
that deserve to be legal. Ad infinitum.
Eight: Status without assimilation is irrelevant, counterproductive,
and historically illegal. Legal status is traditionally achieved by
processes of extended learning, intentional assimilation, and legal
naturalization – all at a pace set by national need and absorption
capacity. Without understanding the American history, language, laws, values,
civic duties, and social expectations, and what it takes to live (and what the
nation expects of those living) lawfully, a resident made instantly legal is
not American. Absent the process that Congress has considered necessary
for assimilation, we would become no more than a big holding pen, a mismatched
conglomerate of humanity, with nothing in common but place.
That
is not America, never has been, and cannot be. To be American takes an
aspiration, and a commitment. It takes time, effort, and lawful process,
as well as social integration. A president can no more declare an
unprepared member of humanity American than he can declare red blue or vice
versa. Assimilation means following a long and winding legal, social,
economic and legitimate process. It takes time; that is the whole point.
Nine: Just as adopting a child into a home affects other family
members, instantly making “legal residents” or “citizens” out of five or seven
million people – many of whom snuck into the country unlawfully – would have
profound effects on the rest of the country. It cheapens the brand we
call American; it undermines the values and processes in which we take
pride. It slights and diminishes the struggle of those who have strived
long and hard to become naturalized citizens, or permanent residents, many of
whom are also from these same countries. It says that laws under which we
live are of less value, and can be unilaterally upended by one man. It
reduces respect for all those who have come to our shores legally, and who take
pride in being legally American. This is no small matter. We are,
collectively, only what we say we are and live up to – when we cheapen the
definition of American, we cheapen it for everyone.
Finally: We are a nation and people of laws, not of whimsy or capricious
acts by self-adulating leaders, not subject to any dictator or the assumption
of power by this or that president. These lines are well-drawn. The
U.S. Supreme Court long ago made the point. We are not ruled by executive
order, never have been, legally and prudentially cannot be, and should not now
be. For any president to believe that he has the power to step upon all
these legal and prudential considerations, because he has a pen and a phone,
indifference to rule of law, or illusions of unilateral authority is simply
misguided.
Nevertheless,
if the dark day comes when unilateral authority is asserted in these new and
sweeping ways by a president, the answer is clear. Instant moves to court
for actions to stay and then reverse these executive orders would be
fitting. Preparations should be made for interlocutory appeals, specific
relief by states and others with standing, preliminary and permanent
injunctions, and defense of individual and collective rights across the country
in federal courts.
On the political front,
Democrats and Republicans who respect our Republic’s history and can see into
the future should prepare to garner and act upon legislation that can be passed
swiftly with a supermajority, making void the presumptive executive orders, and
Americans should speak – as they did once already in November – with one voice,
saying we are ruled not by one man, but by ourselves through Congress.
That is the text, design, history, and enduring intent of our Constitution.
If there can be disagreements about other things, there can be no disagreement
about that.
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