Krauthammer is Right: The Immigration Edict is Lawless

Charles Krauthammer had a column two days ago in the Washington Post arguing that President Obama’s recent immigration edict is unlawful and a violation of his oath. I agree 100% with Dr. Krauthammer’s conclusion, if not with every one of his supporting arguments. Here I just want to describe briefly some of the specific federal statutes that the administration’s edict violates. Even if you are sympathetic with the policy underlying the edict (e.g. I recall that RedState’s Erick Erickson expressed some support for similar principles), I think we can all agree that there’s a right way and a wrong way to get things done in government.

Anyway, some of the existing federal statutes that have now been reduced to rubble are as follows….

8 U.S.C. § 1225(a)(1) says that “an alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter an applicant for admission.”  This triggers 8 U.S.C. § 1225(b)(2)(A): “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.”  Those proceedings are the deportation (“removal”) proceedings of the immigration courts, presided over by immigration judges. These statutory provisions do not require law enforcement to pursue low-priority violators. But, when a suspected violator is encountered, these provisions require detention and reduce prosecutorial discretion. Any relief from deportation must be decided in those removal proceedings, and the limited grounds for cancellation of removal are spelled out at 8 U.S.C. § 1229(b) which suggests nothing like the administration’s new-fangled eligibility criteria. Additionally, the administration has announced plans to grant work permits, which goes considerably beyond a decision to not deport or not prosecute.

8 U.S.C. § 1324a plainly bars employment of illegal aliens.  The executive branch has deferred deportation in the past, and concomitantly has issued work permits, for example when sudden foreign turmoil has prevented safe return to the homeland, but such authority is not statutory (it’s pursuant to the President’s general foreign affairs powers), and it is a reasonable regulatory step consistent with the general meaning of the statutes.  In contrast, issuing work permits to perhaps a million people is not reasonably consistent with 8 U.S.C. § 1324a, especially given that unusual conditions in the home country have nothing to do with the new Obama edict.  And Congress explicitly considered but rejected such a step (defeat of DREAM Act).

There is some language at 8 U. S. C. §1324a(h)(3) suggesting that the Attorney General can determine that an alien is authorized for employment.  But the Attorney General must act according to law: “an ‘unauthorized alien’ is an alien not ‘lawfully admitted for permanent residence’ or not otherwise authorized by federal law to be employed”. See CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA et al. v. WHITING et al. (US Supreme Court 2011).

As far as funding goes, it’s unclear under what authority Obama’s program would be funded.  It can’t be very affordable to verify eligibility requirements for a million people. This is especially true if President Obama’s invocation of prosecutorial discretion is based upon lack of enforcement resources. (And of course a decision to not prosecute is very different from a decision to issue a work permit.)

Another issue is whether Obama’s new program would prevent states from helping to enforce federal statutes.  I doubt the President is supposed to undermine enforcement of federal law that way.

Generally speaking, presidents have sometimes declined to enforce statutes that they deem unconstitutional. Here, though, the president has not asserted any unconstitutionality (nor asserted his pardon power). Presidents generally have a duty to see that the laws are faithfully executed, including the laws that they don’t like. This current situation is a dangerous precedent. It’s bad enough when the judiciary strikes down laws without any serious constitutional reason, but having the president do it too may be a precedent that Democrats will seriously regret.

In sum, Dr. Krauthammer’s conclusion is entirely, 100% correct, though Krauthammer’s explanation may not have been perfect (nor probably is mine).


UPDATE (August 22, 2012): I just want to mention what should be entirely obvious.  I do not have any objection to legal immigration from Mexico or anywhere else.  It’s the illegal kind that I object to.  Children who were brought to the U.S. through no fault of their own certainly deserve special consideration, and that should be part of comprehensive immigration reform, not unilateral dictatorial reform.  Congress is entitled to demand a comprehensive solution that involves securing the border and penalizing employers who hire people who are not here legally.  Instead, Obama violates the law to achieve only those changes that will be of most benefit to himself and his party.

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