Now that a federal court has blocked the president’s executive action on immigration, one might conclude that unilateral amnesty was illegal.
Judge Andrew Hanen seemed to think so in his detailed 123-page opinion. “The [Department of Homeland Security] was not given any ‘discretion by law’ to give 4.3 million removable aliens what the DHS itself labels as ‘legal presence,'” he wrote. “In fact, the law mandates that these illegally-present individuals be removed.”
“The DHS has adopted a new rule that substantially changes both the status and employability of millions,” Hanen concluded. “These changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.”
A new rule that “substantially changes” the law without the sanction of Congress, the body the Constitution assigns the power to make laws. A rule that is in fact contradictory to what “the law mandates.”
Yep, sure sounds illegal. But this writer follows AP Style and therefore eschews such offensive, if accurate, terminology. Let’s call this an undocumented amnesty.
The Obama administration won’t even go this far, insisting that this amnesty actually does have its required papers.
“The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws — which is exactly what the President did when he announced commonsense policies to help fix our broken immigration system,” sayeth White House spokesman Josh Earnest, sounding especially earnest.
Yet Judge Hanen pointed out that the undocumented amnesty goes beyond setting enforcement priorities. It “awards legal presence to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.”
Absent the undocumented amnesty, “these individuals would not receive these benefits,” the judge wrote. “Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits.”
Some people are miffed by this injunction, calling it “judicial vigilantism.” I see their point. It’s almost as if this judge just created out of thin air a new legal status for millions of immigrants, except he followed the law and did the exact opposite.
Instead of getting angry, however, we should be glad: the court has allowed a lot of other undocumented presidential actions to come out of the shadows.
Right now, the president is fighting an undocumented war against ISIS. This undocumented war stole the identity of the legal war against al-Qaida, which was authorized by Congress after the 9/11 terrorist attacks. But ISIS isn’t al-Qaida, just like the guy you pay under the table to mow your lawn isn’t really John Smith.
Let’s not stigmatize this undocumented war. It is doing the dirty jobs, like fighting the barbarians in ISIS, that Congress, some of Iraq’s neighbors and much of the Iraqi military won’t do. That’s why Congress is currently debating a resolution that would legalize this undocumented war.
All that is left to decide is whether Congress wants to pass a strict resolution that would make the undocumented war pay a fine, learn to speak English and proceed without ground troops, or just give the undocumented war blanket amnesty.
This isn’t Obama’s first undocumented war. He previously waged one in Libya. Congress never even adjusted its legal status. That undocumented war was so successful that we now read headlines like “Italy fears ISIS invasion from Libya.”
That’s just the way it is with these undocumenteds. Some of them are valedictorians of their high school classes. Others create power vacuums that allow bloodthirsty terrorists to invade Rome. They are diverse and that’s okay.
You may not like George W. Bush’s wars. You might not want them moving to your neighborhood or marrying your daughter. But they were legal wars that waited in line and created jihadi-filled power vacuums the right way.
Not like Obama’s undocumented National Labor Relations Board recess appointments. There was a time when labor unions were against undocumented types. Even Cesar Chavez didn’t want them around. But labor leaders have changed. They sure wanted these undocumented recess appointments.
Unfortunately, the Supreme Court decided to deport the undocumented recess appointments.
By now, you might be starting to get the impression that a lot of what the federal government does is undocumented. What about the Constitution and the rule of law? Don’t those things matter?
In response, Obama might paraphrase Richard Nixon: when the president does it, that means it is not undocumented.
W. James Antle III is managing editor of The Daily Caller and author of the book Devouring Freedom: Can Big Government Ever Be Stopped? Follow him on Twitter.