Remember those rumors a little while ago that the Obama administration was looking into ways to enact “comprehensive immigration reform” without bothering to go through Congress? You know, the bit where Obama would put himself above the Constitution and just make sweeping changes by executive fiat, bypassing the checks and balances and the little bit where Congress enacts the law and the president enforces it?
Well, it looks like there’s a bit of truth to that one, as a memo has been leaked from the US Customs and Immigration Service that explores just how that could be done.
In and of itself, this is no big deal. This is what government employees do — write memos, plans, and whatnot. Every now and then there’s some bogus outrage when it comes out that the Pentagon has a top-secret plan to do things like invade Canada or destroy San Francisco or, perhaps, even nuke the moon. This is usually linked to a pronouncement of impending tyranny, but all it means is that some guys (and it’s usually guys) in the Pentagon wanted to exercise their planning muscles and preparing for all sorts of contingencies. (England and France were allies in 1939, but England still invaded France in 1944 as France had been conquered and occupied by Germany.)
In this case, the topic of an executive end-run around the actual law has been floating around for some time. It’s not surprising that someone in the CIS would go to some of their legal staff and say “Bob, it’s time you actually did something to earn your paycheck. You know those rumors? Gimme a memo about ways that might be tried, and the legal implications of each of ’em.”
So the existence of the memo is no big deal in and of itself. More troubling is the USCIS’ response to the leak — as noted, the key weasel word is “entire.” As in, “To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.” Nicely weaseled — as long as some illegal aliens are excluded, it’s perfectly accurate. So “amnesty for all illegal aliens except those who have been convicted of at least three sex crimes” is still plausible.
Even more troubling, though, is the problem this inadvertently reveals. The Obama administration has already shown that one of the tools it likes to use to set policy is selective enforcement. If they have a problem with an existing law or policy, they don’t change it — they just ignore it.
That attitude is at the crux of their argument against Arizona’s illegal alien law — they are insisting not only is the enforcement of immigration is the exclusive prerogative of the federal government, but that the executive branch also has the right to refuse to enforce it.
It’s as if they do not recognize a portion of the legally-mandated oath of office. Here’s the presidential version:
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The Constitution is pretty clear, in Article Two, Section 3:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The problem is, how does one enforce that? What options do we (as in “those of us not in the executive branch”) have to deal with a president who just plain refused to “take Care that the Laws be faithfully executed?”
Well, first up is impeachment. Obama took the oath to preserve, protect and defend the Constitution, and to carry out the duties of his office. He’s not only failing to do so, but refusing and fighting for the “right” to not carry out his duties. That ought to be an impeachable offense.
But realistically, that ain’t gonna happen. Even on a strictly partisan basis, it ain’t possible. Even if the Republicans do manage to take both Houses, impeachment and conviction reqauires a majority of the House and two-thirds of the Senate. There is no one who’s predicting that the Republicans will pick up 26 Senate seats.
And impeachment isn’t a strictly partisan matter. There are a lot of politicians who understand that impeachment is a political WMD — and the consequences of using it anything less than the most dire circumstances would be dire indeed. Just getting a majority of the House to vote to impeach — even with a Republican majority — is highly unlikely.
So, what other choices do we have?
I am normally loath to call for such a thing, but I think taking an expansive view of the Constitution — or, at least, talking about doing so — might be worth looking into. More specifically, the 10th Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
I don’t think that it would be too much of a stretch to say that when the federal government specifically refuses to carry out a duty, then that duty should devolve to the several states.
If someone has an obligation and refuses to live up to it, the obligation doesn’t go away. If that obligation is to do something necessary, the necessity doesn’t go away simply because the person whose job it is doesn’t feel like it.
Our immigration laws need enforcing.
Our border needs securing.
And both are the responsibility of the federal government.
None of those are disputable.
But what happens when the federal government refuses to do so? And then takes it even further, and demands that no one else do it, either?
The proper, traditional, American response is to tell DC to go pound swampland. (I know the phrase is “pound sand,” but DC was built on a swamp.) When something needs doing, we do it.
This not completely unprecedented. President Jackson once had a dispute with the Supreme Court over the treatment of Indians in Georgia. It’s reported (but unconfirmed) that he said of the Chief Justice, “John Marshall has made his decision, now let him enforce it!”
But in the end, Jackson found a way to get what he wanted without directly conflicting with the Supreme Court. The Obama administration, on the other hand, seems to believe that it is exempt from the checks and balances inherent in the Constitution, and that the Executive Branch can make de facto changes in the law by controlling when laws are enforced and when they are not — and, more specifically, by whom.
It’s a very, very, very bad notion. I had hoped that Arizona’s move to pick up the slack would serve as a wake-up call to this move, but apparently it won’t.
At least, not yet.