I need you so, that I could die
I love you so, and that is why
Whenever I want you, all I have to do
Is drea----eam, dream.
—The Everly Brothers, All I Have To Do Is Dream
By now you are no doubt aware of President Obama’s (at times surly and even childish) announcement last Friday of a new Homeland Security initiative to suspend deportation of certain illegal aliens who were brought here as children and have kept themselves out of trouble. The action fulfills his pledge last year to act where Congress fails to act, and was lauded by Hispanic activists and decried by conservative commentators as obvious political pandering. All the usual sources have spent the weekend blasting the President’s announcement as an unconstitutional end run around Congress, and they’re correct.
But I don't see that anybody's really detailing why that’s so.
To begin, let me say that this isn’t an I hate Obama thing. Nor is it some racist push to free America from the dead weight of people of color (and no, I'm not saying non-whites are dead weight; I'm mocking what I'm going to be accused of). It’s true that I have substantive objections to amnesty and the DREAM Act, but the discussion today isn’t about the content of the President’s new policy. It’s about how that policy has come to pass.
If you’ve ever tried to play a board game with a four-year-old, you know that the actual rules set out on the inside of the box only matter as long as they suit the four-year-old. The minute it becomes more interesting or more expedient—four-year-olds can’t say “expedient,” but they dang sure understand the concept—those rules change, often unannounced and even in undefined ways. The game, of course, then devolves into a meaningless chaos in which the only certainty is that either the four-year-old will win, or everything comes to an end and there is much rending of garments and gnashing of teeth.
Well, it seems that’s kind of what we’re dealing with with Obama.
I’ve covered this before here, and here, and here, and here. But it appears we’ll have to go through it again.
The cornerstone of our democratic republic, and the reason we’ve been able to avoid any meaningful attempt at a violent coup d’état to this point in our history, is that our government and society are based on the rule of law. We don’t make it up as we go; decisions are made through the application of known principles without the intervention of discretion. That is, we have a set of rules that are well understood and apply to everybody, such that we operate in a predictable set of circumstances, and we can be confident that the same rules that apply today will apply tomorrow. That’s not to say we don’t change or evolve. But even that evolution proceeds according to a defined and predictable process.
The Constitution is our basic legal framework, the rules on the inside of the boxtop setting out how the federal government is supposed to operate. Article I, Section 1 reads, in its entirety:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.
“All,” according to Black’s Law Dictionary, means “the whole of,” or “every member or individual component of.” To “legislate” means “to enact laws.” To “enact” is “to establish by law” or “to decree.” “Power” is “the right, ability, authority, or faculty of doing something.” The Framers could hardly have been more clear: the entire right, ability, and authority to establish or decree laws—every bit of it—rests with Congress. Period. There isn’t even a second sentence to Section 1.
The Framers made no mention of the President in this respect.
But for the learning-impaired, we can go a step further. Article II , Section 1 sets forth the basic job of the President:
The executive Power shall be vested in a President of the United States of America.
Nowhere in Section 1—or anywhere else in Article II—does the Constitution mention a power to legislate. “Executive,” as distinguished from legislative or judicial, is the branch of government charged with “carrying laws into effect and securing their due observance.” Indeed, to “execute” is to “complete,” or “to carry out according to its terms.” And not to put too fine a point on it, the only mention Article II makes of “laws” at all, other than in the context of appointing public officials (and even then it's limiting the presidential appointment power to those matters that Congress decides by law to confer), appears in Section 3:
[The President] shall take Care that the Laws be faithfully executed[.]
The Constitution simply does not confer any power upon the President to create laws. There is no exception for the President to act in an area simply because Congress doesn’t. Nor is there an exception when it’s “the right thing to do.” In the context of Obama’s announcement Friday, it doesn’t matter if his new policy is similar to a proposal made by Tea Party favorite Marco Rubio. There’s a key difference: Marco Rubio is a Senator—a member of that Congress that is vested with the power to legislate—and he can sponsor legislation. Obama isn't, and can't. And in any event, no matter how good or right an idea it is, or how Republican its origins, Barack Obama and Marco Rubio don’t collectively comprise a majority or even an quorum of both houses of Congress. They still need 218 Representatives and 50 more Senators to vote “aye” before their idea can become law.
Furthermore, Congress has acted with respect to the deportation of illegal aliens. The Immigration and Nationality Act of 1965 (8 U.S.C. § 1101 et seq.)—a law pushed by liberal favorite Ted Kennedy—lays the ground rules for immigration and deportation. You can read it for yourself at the U.S. Citizenship and Immigration Services website here. The statute confers NO discretion upon the President to enforce or not enforce the Act as he sees fit, and there is no exception from the deportation rules (8 U.S.C. § 1227 (Sec. 237 at the USCIS website)) for illegal aliens who were brought here as children. There is very limited discretion vested in the Attorney General, the Secretary of State, and the Secretary of Homeland Security to do some very specific things in some very specific circumstances on a case-by-case basis, typically dealing with individual instances of domestic violence. But otherwise, what the statute does do (8 U.S.C. § 1103 (Sec. 103 at the USCIS website)) is charge the Attorney General with the responsibility “to guard the boundaries and borders of the United States against the illegal entry of aliens,” a power Eric Holder has emphatically claimed for himself and the federal government in his lawsuit against the State of Arizona, but which his (and his predecessors’) dereliction in discharging is the root cause of the very dilemma Obama is purporting to address with his partial amnesty.
This is the law enacted by Congress and to which the President is constitutionally bound to take care is faithfully executed. I don’t see how unilaterally decreeing an express policy of refusing to enforce this law is “faithfully executing” anything.
To be sure, Barack Obama is not the first President to issue an executive order, nor is he the first to stretch the boundaries of presidential power. But what we are seeing now is the pinnacle of a branch too long left unchecked, and it has now come fully untethered from its constitutional moorings. The Framers deliberately excluded the ability to make laws—and refusing to enforce is, at a practical level, every bit an act of legislating as is drafting a bill from scratch, because it is effectively writing the law out of existence—from the discretion afforded the President. Our Founders gave us a constitutional republic in which the power to make law rests solely with the People, through their representatives in the two houses of Congress. They wanted to stay away from a government in which the power to make laws resided in the discretion of a single man. They had a word for such a man:
They called him a “king.”
And our Founders pledged their lives, fortunes, and sacred honor to be free of such a man.