President Barack Obama’s carefully timed immigration announcement may be good or bad public policy, depending on your position on the political spectrum. But any way you look at it, it is bad constitutional policy.
When crafting our Constitution more than two-and-a-quarter centuries ago, the Founding Fathers gave each of the three branches of government narrow and limited powers, with each serving as a check on the others.
Perhaps most important were the limitations placed on the executive branch in Article II. The Founding Fathers and their countrymen had just fought a war to break free of the tyranny of King George III, who often issued unilateral laws that violated the rights of the American colonists. They clearly were wary of giving a president too much power.
Reflecting the reality of the manner in which the real world operates, however, the Constitution does provide the chief executive with a substantial degree of latitude to use his or her Article II powers to ensure that laws are “faithfully executed.” But no reasonable interpretation of those provisions authorizes a president to take broad unilateral action to implement policy, especially when directly contrary to legislative action. Yet, this is precisely what Obama is doing through his “mini-DREAM Act.”
Of course, the president’s action is not without precedent. Indeed, in recent decades Republican and Democratic presidents have routinely enhanced the power of the presidency for their benefit and that of their successors.
George W. Bush’s regular use of “signing statements” and “executive orders” to either change the meaning of laws or enact policy without the consent of Congress provides ample precedent on which Obama can justify his actions. This latest brazen example of presidential fiat, however, is extremely troubling because of its scope and the way it defies both the popular will and the will of Congress.
The so-called “DREAM Act,” which provides significant and continuing benefit to persons residing in the United States unlawfully, has been very deliberately stalled in the Congress, despite repeated efforts to secure its passage by the White House and moderates in both major parties. Yet, in the heat of a national election, Obama has decided to throw the principle of separation of powers out the constitutional window and declare major portions of that moribund legislation to be the effective law of the land simply because he wants them to be.
Speaking to the media at the White House Friday, Obama said that giving the children of illegal immigrants, who he says are “are Americans in their hearts and minds,” the ability to obtain work visas and other benefits is “the right thing to do.” He was careful to note that the order does not give them citizenship per se. Administration spokespersons supplemented the president’s message by declaring — with a collective straight face — that the announced plan was not “amnesty,” which, of course, it is.
The damage that this policy inflicts on the notion that America is a nation of laws is profound. Allowing some 800,000 illegal immigrants to work in the United States without any penalty sends the wrong message to Americans constantly being told to “abide by the laws,” especially when unemployment remains at an extremely high 8.2%.
Never one to fall victim to the adage that “consistency is the hobgoblin of little minds,” Obama made his “DREAM” announcement after declaring just last year during a speech to the National Council of La Raza, a Hispanic advocacy group, that the “idea of doing things on [his] own is very tempting,” but noted “that’s not how our system works.” Obviously he was wrong; that is precisely how his system of extra-constitutional government works.
Republicans in this Congress — like their predecessors, who routinely turned the other cheek when presidents slapped them around by openly refusing to abide by legislative action — likely will huff and puff about the policy and then move on to other issues that are easier to deal with; thereby ensuring an even weaker legislative branch of government in coming years.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.