Yesterday (4/18), the Supreme Court heard arguments in a case that stemmed from Barack Obama’s executive action in regard to immigration.
In 2014, the Obama administration’s Department of Homeland Security issued a memo (not an executive order) that essentially rewrote immigration law in the United States. Obama has since then directed DHS to cease enforcement of several federal immigration laws and has unilaterally resettled thousands of refugees within several States across the country.
The issue at hand is whether the executive branch has this type of authority under the Constitution.
Simple answer, no.
Both the language of Article II of the Constitution and the public debates in the several States during the ratifying process of the Constitution make it abundantly clear that the president is required to execute the laws of Congress, period.
In fact, the founding generation considered executing the law to be the president’s most important task. James Wilson of Pennsylvania, perhaps next to Alexander Hamilton the most ardent advocate of a single executive, said the only powers the president should have were “executing the laws and appointing officers.” Roger Sherman of Connecticut “considered the executive magistracy as nothing more than an institution for carrying the will of the legislature into effect.”
James Madison said that the president’s powers were confined to specific objects: the “power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers ‘not legislative nor judiciary in their nature’ as may from time to time be delegated by the national legislature.”
The Obama administration’s attempt to skirt, rewrite, or ignore immigration law is in clear violation of this standard, particularly because by doing so Obama is legislating from the Oval Office. That is certainly a power that the founding generation did not draft into the Constitution and the States did not delegate to the executive branch.
This should not be a difficult decision for the Supreme Court. Obama broke the law and his executive memo should be declared void.
But for the four liberal justices on the bench, it appears to be.
Both Ruth Bader Ginsberg and Sonya Sotomayor made statements during the 90 minutes of arguments that reflected a partisan, legislative position, not a legal opinion.
Ginsberg said, “There are these people who are here to stay, no matter what,” and wondered aloud how the government would come up with the resources to deport all of those who are here illegally.
Sotomayor echoed Ginsberg and suggested that the lead plaintiff in the case, Texas, did not have a clear argument for economic harm because illegal immigrants will have economic repercussions “whether we want (them) to or not.”
This is not for the Court to decide.
Nowhere in Article III does the Constitution grant the federal court system the authority to make policy or to consider the economic impact of a federal law. If we are to accept judicial review—and even that is questionable—then the only parameters that can be reasonably accepted would be in relation to the constitutionality of a specific law or action by the federal government. Deciding how Congress can pay for the deportation of illegal immigrants has nothing to do with the Constitution or the legality of Obama’s executive action.
Obama’s illegal acts have exposed both the naked abuse of the Constitution by the executive branch, an impeachable offense to the founding generation, and the purely partisan nature of Supreme Court justices, another impeachable offense to the founding generation. Ginsberg and Sotomayor might as well campaign for the Democrats and help them write legislation.
Benjamin Franklin said at the Philadelphia Convention in 1787 that, “The executive will be always increasing here, as elsewhere, till it ends in a monarchy.” The famous critic of the Constitution, “Brutus” of New York, wrote that the Constitution created a class of federal judges who “are independent of the people, of the legislature, and of every power under heaven. Man placed in this situation will generally soon feel themselves independent of heaven itself.”
Obama, Ginsberg, and Sotomayor have once again illustrated that the federal republic codified in the Constitution with defined, expressly delegated powers no longer exists.
It is clear that both the President and the Supreme Court “feel themselves independent of heaven itself.” Perhaps “superior to” would be the better phrase.