Monday, August 22, 2011

Ask Not To Whom The Law Applies, For Only Obama Knows

By now you’ve seen that Obama’s Department of Homeland Security has announced a new policy of not pursuing deportation of illegal aliens meeting certain criteria.  This is the latest example of Obama legislating by executive fiat , in this case effectively passing the DREAM Act by administrative order even though it failed to pass in Congress.  It has, of course, been correctly assailed as an unconstitutional usurpation of legislative authority, and we should all be duly alarmed by this President’s boundless hubris in this respect.

But there’s an even darker, more dangerous side to this, and it should scare the daylights out of you.

Under the plan outlined by DHS Secretary Janet Napolitano, a “working group” will review each case individually to determine, based on a series of priorities set by the Obama administration, which cases will be pursued, and which cases will be closed.  In other words, an unnamed panel of people selected by the administration will go case-by-case and decide whether the immigration laws will be enforced.  Like the Deltas’ toga party, those the fraternity likes will be shown to the keg, and those it doesn’t will be shunted off to the front parlor to meet Ken, Larry, and Mohammed. 

It is one thing for Obama to refuse across the board to enforce laws he doesn’t like, as he has done with No Child Left Behind, the Defense of Marriage Act, and in many respects with the immigration laws.  But it is quite another to have it be the official policy of the United States that its laws will be selectively enforced as to some people but not others, as determined by the subjective assessment of some double-secret panel of agency appointees.  This law applies to you, and you, but not to you.  Do not ask why.

The potential ramifications are chilling, to say the least.

Ostensibly the DHS review will be framed by criteria borrowed from the DREAM Act, such as those who are in school, or who have U.S. citizen relatives, and what have you.  But what keeps that review confined to those criteria?  What’s to stop this panel from basing deportation review decisions on, for example, an individual’s political views, with administrative closure being granted only to those who can demonstrate a predisposition to agreeing with the President’s agenda (and, of course, what better way to demonstrate that predisposition than by putting one’s money where one’s mouth is, if you get my meaning)?

But take it a step further.  If the President (through his agency appointees) can set up a panel to decide on a case-by-case basis whether to enforce the immigration laws, what prevents him from setting up other panels to make other case-by-case reviews of whether to enforce other laws?  For example:

·      The State Department could establish a panel to review passport applications and grant only those that, in the panel’s judgment, are requested for purposes in line with a list of priorities set forth by the White House (sounds a little like Cuba or the old Soviet Union, doesn’t it?).

·      The Treasury Department could set up a panel to review tax cases and no longer seek recovery of unpaid taxes against members of groups that, in the White House’s view, have historically been economically disadvantaged. 

·      The Social Security Administration could deploy a panel to review social security benefits on a case-by-case basis and adjust or even withhold benefits based on its subjective assessment of an individual’s “need.”

·      The Department of Health and Human Services could create a panel to review on a case-by-case basis whether a person may receive medical treatment based on a policy of prioritizing treatment for those who, in the panel’s subjective judgment, have the most potential for contributing to society in the future.

For you Leftists out there, imagine this executive power of selective enforcement in the hands of, say, a David Duke.  Do I have your attention now?

This has nothing to do with how you feel about immigration.  We are supposed to be a nation of laws that apply equally to everybody.  Under the Fourteenth Amendment:

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has held since the 1950s that this same concept also applies to the federal government through the Fifth Amendment’s due process clause.  I don’t like to suggest that illegal aliens have rights under our Constitution, but those who cry for “immigration reform” (read: amnesty) routinely insist that they do.  And if the President can by executive order start picking and choosing against whom the immigration laws will apply and be enforced, he can do it in any other context, at which point the whole idea of equal protection becomes meaningless.

I understand prosecutorial discretion and the need to focus limited resources.  But this is setting up agency review of enforcement on a case-by-case basis, based on political criteria promulgated by the White House having nothing to do with the violations at issue.  These people are all in different circumstances, but they’re all in custody and being reviewed for the same crime: being here illegally.  That is the law we’re talking about enforcing.  They’ve all violated that law in exactly the same way and to exactly the same extent.  There aren’t different degrees of violation, and this isn’t the sort of thing where the strength of the evidence of guilt can vary.  It’s objective—you’re either a citizen or you aren’t, and if you’re not, you either followed the legal process and have the necessary authorization to be here or you didn’t.  If you didn’t, the law says you are to be sent back from whence you came, and it doesn’t matter whether you’re a nice guy, or whether the President likes you.  You’re not less an illegal alien just because you’re in school.  The law is to apply equally to everyone. 

This administration is not only legislating by executive fiat, but it is now deciding on an individual basis to whom the law applies, and to whom it does not. 

These are treacherous waters indeed, friends. 

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