4/21/2016 - Judge Andrew
Napolitano Townhall.com
In
2014, President Barack Obama signed 12 executive orders directing various
agencies in the departments of State, Justice and Homeland Security to refrain
from deporting some 4 million adult immigrants illegally present in the United
States if they are the parents of children born here or legally present here
and if they hold a job, obtain a high-school diploma or its equivalent, pay
taxes and stay out of prison.
Unfortunately
for the president, the conditions he established for avoiding deportation had
been rejected by Congress.
In
response to the executive orders, 26 states and the House of Representatives
sued the president and the recipients of the orders, seeking to prevent them
from being enforced. The states and the House argued that the president
effectively rewrote the immigration laws and changed the standards for the
deportation of unlawfully present adult immigrants.
The
states also argued that because federal law requires them to offer the same
safety net of social services for those illegally present as they do for those
lawfully present, the financial burden that the enforcement of those orders
would put upon them would be far beyond their budgetary limits. Moreover, they
argued, enforcement of the president's orders would effectively constitute a
presidential command to the states to spend their own tax dollars against their
wishes, and the president lacks the power to do that.
In
reply, the president argued that the literal enforcement of the law creates an
impossible conundrum for him. He does not want to deport the parents of
American children, as that destroys families and impairs the welfare of
children; and he cannot deport children who were born here, as they are
American citizens. Hence his novel resolution.
The
case was filed in Texas, where a federal district court judge agreed with the
states and signed an order that prohibited the feds from enforcing the
president's orders, pending a full trial. The feds appealed.
The
U.S. Court of Appeals for the 5th Circuit in New Orleans upheld the injunction
against the president. In so doing, it agreed with the states that the
financial burden on them that would come from the enforcement of these
executive orders would be unconstitutional. It also agreed with the House of
Representatives that the president exceeded his authority under the
Constitution and effectively rewrote the laws.
This
week, the Supreme Court heard the feds' appeal. Because the seat formerly
occupied by the late Justice Antonin Scalia for 30 years is still vacant, the
court has just eight justices -- for the most part, four conservatives and four
liberals. A tie vote in the court, which appears likely in this case, will not
set any precedent, but it will retain the injunction against the president. The
most recent time this happened was 1952, when the court enjoined President
Harry Truman from seizing steel mills during the Korean conflict.
Though
the issue here is immigration, the constitutional values underlying the case
are more far-reaching. Since the era of Woodrow Wilson -- accelerated under
Franklin D. Roosevelt, enhanced under Lyndon B. Johnson and brought over the
top under George W. Bush -- Congress has ceded some of its powers to the
president. It has enabled him to borrow unlimited amounts of money and to spend
as he sees fit. It has looked the other way when presidents have started wars,
arrested Americans without charge or trial and even killed Americans.
Can
Congress voluntarily give some of its powers to the president, either by
legislation or by impotent acquiescence when the president takes them?
In a
word, no.
The
purpose of the division of powers -- Congress writes the laws, the president
enforces the laws and the courts interpret them and decide what they mean -- is
to preserve personal liberty by preventing the accumulation of too much power
in one branch of government.
The
26 states and the House told the Supreme Court this week that the president is
enforcing the laws not as Congress wrote them but as he wishes them to have
been written, because he actually directed officials of the executive branch to
enforce the versions of the laws that he rewrote instead of the laws on the
books.
That
arguably violates his oath of office, in which he agreed that he would
"faithfully" enforce all federal laws. We know from his notes that
James Madison, when he drafted the presidential oath, insisted that the word
"faithfully" be inserted so as to impress upon presidents their
obligation to enforce laws even if they disagree with them.
During
oral argument in the court this week, there was a bizarre exchange over
terminology that the president used in his orders. In a weird series of
questions, Chief Justice John Roberts Jr. asked whether the president's
executive orders could be salvaged constitutionally by excising or changing a
few words. This was improper because it treated an executive order as if it
were a statute. It is not the job of the court to find ways to salvage
executive orders as it is to salvage statutes, because the Constitution has
given "all legislative Powers" to Congress and none to the president.
Statutes
are presumed to be constitutional. Executive orders that contradict statutes
are presumed to be unconstitutional, and the court has no business trying to
save them.
All
presidents from time to time have exercised discretion upon individuals when it
comes to enforcing laws that pose hardships. But none has done so for 4 million
people, and none has written substitute laws of his own making. Until now.
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