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Has Obama Violated the Constitution by Delaying Deportation.
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Has Obama Violated the Constitution by Delaying Deportation.
- Thread starter eagle1462010
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- May 17, 2013
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Law Profs Obama s Deferred Action Not Supported by Constitution Center for Immigration Studies
The professors summarize their main points:
First, the common idea that the president has a positive constitutional "authority" to decide not to enforce the civil law is mistaken. The Take Care Clause, coupled with related constitutional provisions, establishes that the president has a duty to enforce the laws. The Constitution confers no express or implied power or authority not to enforce the laws. On the face of it, the Obama administration breached its constitutional duty by refusing to enforce the immigration law in (up to) 1.7 million cases.
Second, the administration cannot rely on a claim of presidential "prerogative" to justify a decision not to enforce the law. American constitutional practice, coupled with the Supreme Court's case law, does indeed suggest that there is a presidential prerogative. But if so, that prerogative is one granted by the Constitution; it is not extra-constitutional. And it is restricted to action for the sake of national security in times of war or sudden crisis. Presidential prerogative does not justify a refusal to enforce the immigration laws in ordinary, non-critical circumstances. Rather, the Constitution tries to solve the problem of reconciling the need for a strong executive with a republican form of government by giving the president broad, undefined powers in the international sphere but circumscribing his power closely in domestic matters.
Third, just as in common law, a range of defenses can be made to a breach of duty, so defenses can be offered for the administration's apparent breach of duty here. The main justifications or excuses that can be used to defend a breach of the duty of faithful execution fall into four main categories: that the "law" whose non-enforcement is at issue is unconstitutional; that enforcement in the particular circumstances would interfere materially with the exercise of another constitutional power of the president (such as those over foreign affairs and national security); that equity in individual cases warrants forbearance in enforcement; and most importantly here, that the enforcing agency lacks sufficient resources for complete enforcement and must therefore use its best judgment how to allocate the resources it has. The administration's non-enforcement decision with regard to the DREAMers does not, despite its claims to the contrary, appear to fall within any of these categories, including the last. It stands, thus far, as an unexcused breach of duty.
Fourth, the administration's decision is the almost inevitable outcome of what has been described as a "de facto" delegation system that Congress has established in the immigration area. The combination of a massive illegal immigrant population, extremely stringent laws regarding deportability, and inadequate resourcing for enforcement, it can be argued, gives the president virtually unfettered control to decide who remains in the country and who is removed. If this understanding of our immigration law system is correct, then that system poses a threat to the traditional conception of the rule of law and its attempt to control arbitrary executive action. It invites a president to create operative, functional "law" covering hundreds of thousands of cases that overtly contravenes statutory law.
The professors summarize their main points:
First, the common idea that the president has a positive constitutional "authority" to decide not to enforce the civil law is mistaken. The Take Care Clause, coupled with related constitutional provisions, establishes that the president has a duty to enforce the laws. The Constitution confers no express or implied power or authority not to enforce the laws. On the face of it, the Obama administration breached its constitutional duty by refusing to enforce the immigration law in (up to) 1.7 million cases.
Second, the administration cannot rely on a claim of presidential "prerogative" to justify a decision not to enforce the law. American constitutional practice, coupled with the Supreme Court's case law, does indeed suggest that there is a presidential prerogative. But if so, that prerogative is one granted by the Constitution; it is not extra-constitutional. And it is restricted to action for the sake of national security in times of war or sudden crisis. Presidential prerogative does not justify a refusal to enforce the immigration laws in ordinary, non-critical circumstances. Rather, the Constitution tries to solve the problem of reconciling the need for a strong executive with a republican form of government by giving the president broad, undefined powers in the international sphere but circumscribing his power closely in domestic matters.
Third, just as in common law, a range of defenses can be made to a breach of duty, so defenses can be offered for the administration's apparent breach of duty here. The main justifications or excuses that can be used to defend a breach of the duty of faithful execution fall into four main categories: that the "law" whose non-enforcement is at issue is unconstitutional; that enforcement in the particular circumstances would interfere materially with the exercise of another constitutional power of the president (such as those over foreign affairs and national security); that equity in individual cases warrants forbearance in enforcement; and most importantly here, that the enforcing agency lacks sufficient resources for complete enforcement and must therefore use its best judgment how to allocate the resources it has. The administration's non-enforcement decision with regard to the DREAMers does not, despite its claims to the contrary, appear to fall within any of these categories, including the last. It stands, thus far, as an unexcused breach of duty.
Fourth, the administration's decision is the almost inevitable outcome of what has been described as a "de facto" delegation system that Congress has established in the immigration area. The combination of a massive illegal immigrant population, extremely stringent laws regarding deportability, and inadequate resourcing for enforcement, it can be argued, gives the president virtually unfettered control to decide who remains in the country and who is removed. If this understanding of our immigration law system is correct, then that system poses a threat to the traditional conception of the rule of law and its attempt to control arbitrary executive action. It invites a president to create operative, functional "law" covering hundreds of thousands of cases that overtly contravenes statutory law.
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Chapter 2 The source and scope of the federal power to regulate immigration and naturalization
§ 2-3.3 The Executive
As in other areas of the law, the function of executive agencies in the field of immigration is to enforce the legislation passed by Congress. The structure of the federal executive agencies that administer and enforce the immigration laws is discussed in chapter 3. Once Congress determines which classes of non-citizens will be denied admission or removed, the executive decides who fits within each class. Since the executive has no inherent power over immigration, it must stay within the grant of authority defined by the statute. Any unauthorized executive decisions are illegal and the courts may overturn them. Mahler v. Eby (Sup.Ct.1924).
Congress need not give the agencies detailed direction. The courts have not hesitated to uphold broad delegations of power to the enforcement agency. Jay v. Boyd (Sup.Ct.1956). In general, Congress need only delineate basic policy. Agencies then have relatively free rein in creating procedures to implement, administer, and enforce the immigration laws. Congress may also make the executive decisions final, thereby precluding review by the courts of agency factual findings. IIRIRA, for example, stripped the courts of jurisdiction to review any individual determination which arose from or is related to summary removal under INA § 235(b)(1). INA § 242(a)(2)(A)(i). The courts are also precluded from reviewing any decision by the Attorney General to invoke the summary removal provisions. INA § 242(a)(2)(A)(ii). The application of summary removal to individual non-citizens, including the determination of a non-citizen's credible fear, is also not subject to judicial review. INA § 242(a)(2)(A)(iii). In addition, IIRIRA bars judicial review of procedures and policies adopted by the Attorney General to implement the summary removal provisions of INA § 235(b)(1). INA § 242(a)(2)(A)(iv). Courts have interpreted these limitations on judicial review narrowly. See § 9-4.3, infra.
In 1983, an issue surfaced concerning the division of power between the executive and legislative branches that pertained to deportation procedures. Congress had reserved the power of one house of Congress to veto any individual decision by the INS to suspend deportation (now "cancel removal"). See § 9-3, infra for a discussion of cancellation of removal. The House of Representatives exercised this veto in the case of an East Indian from Kenya who was thus to be deported, and challenged the congressional action as a violation of constitutional separation of powers. The Supreme Court held in the landmark decision of INS v. Chadha (Sup.Ct.1983) that such legislative veto provisions violated the constitutional requirement that, before becoming law, all bills must pass both the House and the Senate, and be presented to and signed by the President.
Finally, Congress may not give the executive the power to impose punishment for crimes. The courts alone may exercise this power and the procedures must comply with the constitutional requirements for all criminal prosecutions. Deportation (now "removal") is not considered criminal punishment, however, even when triggered by illegal acts.
§ 2-3.3 The Executive
As in other areas of the law, the function of executive agencies in the field of immigration is to enforce the legislation passed by Congress. The structure of the federal executive agencies that administer and enforce the immigration laws is discussed in chapter 3. Once Congress determines which classes of non-citizens will be denied admission or removed, the executive decides who fits within each class. Since the executive has no inherent power over immigration, it must stay within the grant of authority defined by the statute. Any unauthorized executive decisions are illegal and the courts may overturn them. Mahler v. Eby (Sup.Ct.1924).
Congress need not give the agencies detailed direction. The courts have not hesitated to uphold broad delegations of power to the enforcement agency. Jay v. Boyd (Sup.Ct.1956). In general, Congress need only delineate basic policy. Agencies then have relatively free rein in creating procedures to implement, administer, and enforce the immigration laws. Congress may also make the executive decisions final, thereby precluding review by the courts of agency factual findings. IIRIRA, for example, stripped the courts of jurisdiction to review any individual determination which arose from or is related to summary removal under INA § 235(b)(1). INA § 242(a)(2)(A)(i). The courts are also precluded from reviewing any decision by the Attorney General to invoke the summary removal provisions. INA § 242(a)(2)(A)(ii). The application of summary removal to individual non-citizens, including the determination of a non-citizen's credible fear, is also not subject to judicial review. INA § 242(a)(2)(A)(iii). In addition, IIRIRA bars judicial review of procedures and policies adopted by the Attorney General to implement the summary removal provisions of INA § 235(b)(1). INA § 242(a)(2)(A)(iv). Courts have interpreted these limitations on judicial review narrowly. See § 9-4.3, infra.
In 1983, an issue surfaced concerning the division of power between the executive and legislative branches that pertained to deportation procedures. Congress had reserved the power of one house of Congress to veto any individual decision by the INS to suspend deportation (now "cancel removal"). See § 9-3, infra for a discussion of cancellation of removal. The House of Representatives exercised this veto in the case of an East Indian from Kenya who was thus to be deported, and challenged the congressional action as a violation of constitutional separation of powers. The Supreme Court held in the landmark decision of INS v. Chadha (Sup.Ct.1983) that such legislative veto provisions violated the constitutional requirement that, before becoming law, all bills must pass both the House and the Senate, and be presented to and signed by the President.
Finally, Congress may not give the executive the power to impose punishment for crimes. The courts alone may exercise this power and the procedures must comply with the constitutional requirements for all criminal prosecutions. Deportation (now "removal") is not considered criminal punishment, however, even when triggered by illegal acts.
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Oceanic Steam Navigation Co. v. Stranahan 214 U.S. 320 1909 Justia U.S. Supreme Court Center
The constitutional right of Congress to enact legislation in regard to a matter wholly within its jurisdiction is the sole measure by which the validity of such legislation is to be determined by the courts, and the courts cannot proceed on the supposition that harm will follow if the legislature be permitted full sway and, in order to correct the legislature, exceed their own authority, and assume that wrong may be done in order to prevent wrong being accomplished. McCray v. United States,195 U. S. 27.
The imposition of a penalty by an executive officer when authorized by Congress in a matter wholly within its competency, such as alien immigration, is not unconstitutional under the Fifth Amendment as taking property without due process of law.
The courts cannot make mere form, and not substance, the test of the constitutional power of Congress to enact a statute in regard to a matter over which Congress has absolute control.
The prohibition of § 9 of the Alien Immigration Act of March 3, 1903, c. 1012, 32 Stat. 1213, against bringing into the United States alien immigrants afflicted with loathsome and contagious diseases is within the absolute power of Congress, and that provision of the act is not unconstitutional because it provides that the Secretary of Commerce and Labor may, without judicial trial, impose upon, and exact
The constitutional right of Congress to enact legislation in regard to a matter wholly within its jurisdiction is the sole measure by which the validity of such legislation is to be determined by the courts, and the courts cannot proceed on the supposition that harm will follow if the legislature be permitted full sway and, in order to correct the legislature, exceed their own authority, and assume that wrong may be done in order to prevent wrong being accomplished. McCray v. United States,195 U. S. 27.
The imposition of a penalty by an executive officer when authorized by Congress in a matter wholly within its competency, such as alien immigration, is not unconstitutional under the Fifth Amendment as taking property without due process of law.
The courts cannot make mere form, and not substance, the test of the constitutional power of Congress to enact a statute in regard to a matter over which Congress has absolute control.
The prohibition of § 9 of the Alien Immigration Act of March 3, 1903, c. 1012, 32 Stat. 1213, against bringing into the United States alien immigrants afflicted with loathsome and contagious diseases is within the absolute power of Congress, and that provision of the act is not unconstitutional because it provides that the Secretary of Commerce and Labor may, without judicial trial, impose upon, and exact
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The courts will rule against Obama.............
He doesn't have the authority to change the laws and/or not enforce the laws he doesn't agree with.
He is in VIOLATION of the CONSTITUTION, by not enforcing laws and changing the laws under EXECUTIVE FIAT................
The history of the courts shows that if taken to the Supreme Court for this he will lose.....................
Obama isn't a dictator..........we don't elect dictators.....................He's out of line and should be challenged in every way possible.............
Including STATES REFUSING TO ACKNOWLEDGE the Executive Order as it is in violation of the Consitution.
He doesn't have the authority to change the laws and/or not enforce the laws he doesn't agree with.
He is in VIOLATION of the CONSTITUTION, by not enforcing laws and changing the laws under EXECUTIVE FIAT................
The history of the courts shows that if taken to the Supreme Court for this he will lose.....................
Obama isn't a dictator..........we don't elect dictators.....................He's out of line and should be challenged in every way possible.............
Including STATES REFUSING TO ACKNOWLEDGE the Executive Order as it is in violation of the Consitution.
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The2ndAmendment
Gold Member
It is profoundly unconstitutional.
He's also aiding and abetting foreign invaders.
He's also aiding and abetting foreign invaders.
Marianne
Diamond Member
I don't know much about politics but what I do know is every time Obama bypasses Congress he bypasses WE THE PEOPLE. We put these people in office to represent us and what we want done. If Obama fails to respect that what is the point of having congress in the first place? If he disagrees with what they decide he just does what he wants by executive order? I ask again, whats the point of having congress in the first place. This is no better than the policies of the USSR in the cold war when you had one choice on the ballot and you voted in favor of the one option or got sent to Siberia. Seems Obama is saying the only option is what he says it is. He's acting like a dictator.
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I agree..............I don't know much about politics but what I do know is every time Obama bypasses Congress he bypasses WE THE PEOPLE. We put these people in office to represent us and what we want done. If Obama fails to respect that what is the point of having congress in the first place? If he disagrees with what they decide he just does what he wants by executive order? I ask again, whats the point of having congress in the first place. This is no better than the policies of the USSR in the cold war when you had one choice on the ballot and you voted in favor of the one option or got sent to Siberia. Seems the Obama is saying the only option is what he says it is. He's acting like a dictator.
He will violate the Constitution again when he starts giving work permits to those not eligible for them under the law. But hey, he's the mulatto messiah and the commiecrats will never vote to throw his worthless ass out of office so we are stuck with him for another 25 months.
Marianne
Diamond Member
We've tried amnesty once already, it failed.
The Immigration Reform and Control Act (IRCA), Pub.L. 99–603, 100 Stat. 3445, enacted November 6, 1986, also known as the Simpson-Mazzoli Act, signed into law by Ronald Reagan on November 6, 1986, is an Act of Congress which reformed United Statesimmigration law. The Act[1]
Immigration Reform and Control Act of 1986 - Wikipedia the free encyclopedia
The Immigration Reform and Control Act (IRCA), Pub.L. 99–603, 100 Stat. 3445, enacted November 6, 1986, also known as the Simpson-Mazzoli Act, signed into law by Ronald Reagan on November 6, 1986, is an Act of Congress which reformed United Statesimmigration law. The Act[1]
- required employers to attest to their employees' immigration status;
- made it illegal to hire or recruit illegal immigrants knowingly;
- legalized certain seasonal agricultural illegal immigrants, and;
- legalized illegal immigrants who entered the United States before January 1, 1982 and had resided there continuously with the penalty of a fine, back taxes due, and admission of guilt; candidates were required to prove that they were not guilty of crimes, that they were in the country before January 1, 1982, and that they possessed minimal knowledge about U.S. history, government, and the English language.
Immigration Reform and Control Act of 1986 - Wikipedia the free encyclopedia
BULLDOG
Diamond Member
- Jun 3, 2014
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We've tried amnesty once already, it failed.
The Immigration Reform and Control Act (IRCA), Pub.L. 99–603, 100 Stat. 3445, enacted November 6, 1986, also known as the Simpson-Mazzoli Act, signed into law by Ronald Reagan on November 6, 1986, is an Act of Congress which reformed United Statesimmigration law. The Act[1]
At the time, the Immigration and Naturalization Service estimated that about four million illegal immigrants would apply for legal status through the act and that roughly half of them would be eligible.[2]
- required employers to attest to their employees' immigration status;
- made it illegal to hire or recruit illegal immigrants knowingly;
- legalized certain seasonal agricultural illegal immigrants, and;
- legalized illegal immigrants who entered the United States before January 1, 1982 and had resided there continuously with the penalty of a fine, back taxes due, and admission of guilt; candidates were required to prove that they were not guilty of crimes, that they were in the country before January 1, 1982, and that they possessed minimal knowledge about U.S. history, government, and the English language.
Immigration Reform and Control Act of 1986 - Wikipedia the free encyclopedia
I'm really impressed with that Einstein quote. What do you think he would have said about teabaggers in the house voting 50 times to end healthcare?
Marianne
Diamond Member
You mean the Obama Heathcare plan forced on American people that he spent oddles of money on and it still sucked? I think he'd understand someone trying to stop what they thought was a violation of the Constitution and what they correctly predicted to be a major fail no matter what it took even if it was in vain.We've tried amnesty once already, it failed.
The Immigration Reform and Control Act (IRCA), Pub.L. 99–603, 100 Stat. 3445, enacted November 6, 1986, also known as the Simpson-Mazzoli Act, signed into law by Ronald Reagan on November 6, 1986, is an Act of Congress which reformed United Statesimmigration law. The Act[1]
At the time, the Immigration and Naturalization Service estimated that about four million illegal immigrants would apply for legal status through the act and that roughly half of them would be eligible.[2]
- required employers to attest to their employees' immigration status;
- made it illegal to hire or recruit illegal immigrants knowingly;
- legalized certain seasonal agricultural illegal immigrants, and;
- legalized illegal immigrants who entered the United States before January 1, 1982 and had resided there continuously with the penalty of a fine, back taxes due, and admission of guilt; candidates were required to prove that they were not guilty of crimes, that they were in the country before January 1, 1982, and that they possessed minimal knowledge about U.S. history, government, and the English language.
Immigration Reform and Control Act of 1986 - Wikipedia the free encyclopedia
I'm really impressed with that Einstein quote. What do you think he would have said about teabaggers in the house voting 50 times to end healthcare?
I still haven't seen anyone including Obama explain why he felt so strongly over a few years
how he could not do what he ended up doing.
What changed?
how he could not do what he ended up doing.
What changed?
BULLDOG
Diamond Member
- Jun 3, 2014
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You mean the Obama Heathcare plan forced on American people that he spent oddles of money on and it still sucked? I think he'd understand someone trying to stop what they thought was a violation of the Constitution and what they correctly predicted to be a major fail no matter what it took even if it was in vain.We've tried amnesty once already, it failed.
The Immigration Reform and Control Act (IRCA), Pub.L. 99–603, 100 Stat. 3445, enacted November 6, 1986, also known as the Simpson-Mazzoli Act, signed into law by Ronald Reagan on November 6, 1986, is an Act of Congress which reformed United Statesimmigration law. The Act[1]
At the time, the Immigration and Naturalization Service estimated that about four million illegal immigrants would apply for legal status through the act and that roughly half of them would be eligible.[2]
- required employers to attest to their employees' immigration status;
- made it illegal to hire or recruit illegal immigrants knowingly;
- legalized certain seasonal agricultural illegal immigrants, and;
- legalized illegal immigrants who entered the United States before January 1, 1982 and had resided there continuously with the penalty of a fine, back taxes due, and admission of guilt; candidates were required to prove that they were not guilty of crimes, that they were in the country before January 1, 1982, and that they possessed minimal knowledge about U.S. history, government, and the English language.
Immigration Reform and Control Act of 1986 - Wikipedia the free encyclopedia
I'm really impressed with that Einstein quote. What do you think he would have said about teabaggers in the house voting 50 times to end healthcare?
So you think Einstein would change his beliefs for your benefit? Amazing.
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Bump
Publius1787
Gold Member
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Has Obama Violated the Constitution by Delaying Deportation.
By ignoring 5,000,000 illegals, perhaps. I can't answer that question. But I know h's violating the Constitution by granting work permits.
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I'll rephrase the question then. Is he in violation of his oath of office and duties as the President by not enforcing the laws of this land?Has Obama Violated the Constitution by Delaying Deportation.
By ignoring 5,000,000 illegals, perhaps. I can't answer that question. But I know h's violating the Constitution by granting work permits.
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