President Obama’s unilateral declaration last week that he will stop enforcing immigration laws for an entire class of individuals — at least through the November election — took many by surprise. Most are under the impression that Congress, not the White House, makes the immigration laws of the United States.
They are right, of course. But the president’s stunning audacity exposed a little-known secret about executive authority — a rare vulnerability in our system that in the hands of an unscrupulous power-seeker creates a real danger to American liberty and self-determination. In reality, nothing except statesmanship and a patriotic impulse prevents any president from ignoring the nation’s immigration laws and admitting millions of people just because he believes pleasing a particular ethnic bloc or foreign power is more important than the nation’s right to self-determination.
While immigration law has traditionally been statutory in nature, the president’s unabashed move to circumvent Congress last week brings our immigration system face to face with a constitutional crisis. The framers of the Constitution created a system of government that placed each of the three branches in a position to balance the powers of the other two.
With most issues of public policy, perceived illegal action on the part of the executive branch is enjoined by a federal court. But when it comes to defending our borders and immigration control, Americans are without recourse in the judicial system. This is because courts have been unwilling to grant legal “standing” to any party that seeks to stop the executive’s illegal admission of ineligible aliens.
The result? A president seeking to use immigration to garner votes or favors can admit millions illegally and no one can stop him. The only parallels in executive power — that is, powers that are fully outside of judicial review — are in the areas of national defense and foreign policy. In this case, President Obama is now aware that he holds in his hands virtually unreviewable authority to admit tens — or hundreds — of millions of non-citizens from aboard solely on his own decree.
The DREAM amnesty, if not aggressively and forcefully stopped through immediate congressional action, will only grow and grow. Unchecked, it will transmogrify into a chaotic, unmanageable, bankrupting nightmare for the nation.
Since FAIR’s founding in 1979, we have been concerned about this possible power-grab. We had always hoped — perhaps naively — that no one would be so unprincipled as to try to so flagrantly abuse the process in order to score political points.
President Obama’s actions, however, have brought to a head our greatest fears: a president would go rogue and ignore the Constitution as well as the explicit commands of statutory law and admit illegal aliens for partisan gain. His Rose Garden announcement last week not only ignored statutory law, it failed to explain how much the new policy would cost taxpayers, how much it would burden the Department of Homeland Security, how many new labor market participants it would create, how the “guidelines” were determined or how the guidelines limit future eligibility.
In short, the president’s announcement of his new immigration policy contained none of the administrative or legal protections associated with administrative or statutory policy development. It was just him making up new laws — all by himself. At this point, he’s “the judge in his own cause.”
Bad statesmen make unwise decisions. And when a president flip-flops and says he now has legal authority to do something that only eight months ago he claimed he did not, you can be sure it’s an unwise — and illegal — action. But to such claims, he merely says: just try and stop me.
Dan Stein is the president of the Federation for American Immigration Reform (FAIR).