Presidential Decrees & Immigration Reform

Children are often warned that one wrong action does not justify a second equally wrong action. Some activists need to take that truth to heart.

In a piece entitled, The Great Dictator Debate, Kurt Eichenwald contends that President Obama possesses the legal authority to issue visas to millions to migrants who illegally reside in the United States. His rationale was straightforward: “(a)n order that illegal immigrants with children will not be prosecuted for deportation clearly falls under a presidential pardon power under Article II.”

Mr. Eichenwald augments his power-of-the-pardon logic with a defense of executive orders, and a condescending history lesson (Ronald Reagan and George H.W. Bush both used the presidency to bypass congress and achieve their version of immigration reform). Yet if an official pardon fails to materialize, Kurt Eichenwald is left with a house built on sand.

One of the President’s foremost jobs is to “take Care that the Laws be faithfully executed.” The clarity of this positive proclamation of duty makes presidential efforts to undermine or ignore established laws constitutionally suspect. Only a presidential pardon can relieve the president of his law enforcement duties. The constitutional misdeeds of Ronald Reagan and George H.W. Bush can never justify a President’s attempts to legislate through executive proclamations. Existing laws cannot be fundamentally changed by any President – the Constitution explicitly places all law-making authority in the hands of Congress.

Contrary to the beliefs of untethered proponents of presidential power, Congress alone possesses the constitutional authority to alter the legal status of individuals who illegally live and work in the United States. The Constitution unequivocally vests Congress with the sole power to “establish an uniform Rule of Naturalization,” and the plenary power to regulate immigration. Lest the supporters of an overpowering president deem these grants of authority insufficient, it is worth noting that Congress also has ability to“make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.”

With solid constitutional footing hard to come by, many of President Obama’s supporters insist that President Truman’s executive order to desegregated the army offers a compelling a precedent for executive action on immigration. They are wrong.  Not only was President Truman the Commander in Chief of America’s armed forces (a constitutional designation), he was also implementing the 14th amendment’s guarantee of equality. The current President is not the Legislator in Chief, and his executive action on immigration will not protect a heretofore neglected constitutional right. A comparison between Mr. Truman and Mr. Obama strains credulity.

It is easy to disagree with Kurt Eichenwald’s underwhelming case for executive action, but he nevertheless makes an excellent point: many Republicans are ideological hypocrites. Any immigration oriented executive action by President Obama will be untenable for most conservatives, yet the ghost of Ronald Reagan remains largely untainted by a similar constitutional sin. The hypocrisy must end.

Modern Presidents routinely prioritize the enforcement of some laws, over the enforcement of other laws. But a clear Presidential refusal to enforce duly enacted laws is an obvious constitutional transgression. When a President spearheads executive actions that clearly contradict laws enacted by Congress, his constitutional indiscretion becomes highly disturbing indeed.

It is one thing for the President to cast aside his constitutional duty by refusing to enforce duly enacted laws, but it is altogether more dangerous if he attempts to usurp congressional power at the same time.


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