Liberals in the media (but I repeat myself) have been having great fun mocking the idea that various Republicans may seek a legal remedy in response to tonight’s executive amnesty announcement. It’s all political theater, they say. These are just conservatives thinking of running for President themselves and posturing for the base. But as we move forward, it’s probably worth taking a moment to wipe the chalkboard clean and get back to basics.
According to the Constitution, upon taking office the President will swear an oath, and it shall include the phrase, to the best of my Ability, preserve, protect and defend the Constitution of the United States. Inside that document, in Article II, it directs that the President, shall take care that the laws be faithfully executed. The President took that oath, and as a noted constitutional scholar and professor, I feel safe in assuming that he is familiar with that directive.
We should note that reality frequently intrudes on the President’s ability to achieve that goal with 100% efficiency. There are limits to how many officers at each level of enforcement are available to investigate and pursue all the crime that takes place. Holding the President accountable for the fact that each and every kidnapping victim in the country is not returned safely would be facetious. Also, there are limits to the money and resources available for the enforcement of the law, and in the past we have seen instances where Justice has to pull back a bit on lower priority crimes, allowing them to focus on the most serious issues.
None of these exceptions are what is under discussion in the issue of executive amnesty. Assuming that the early reports are accurate, the President will essentially halt all pursuit of between four and five million criminals tonight. We have known for a long time that it is not possible for ICE and Homeland Security to find each and every illegal immigrant in the country and deport them. We’re not happy about it, but that’s the reality on the ground. We do, however, expect them to do the best they can with the resources available.
Executive amnesty is not cut from the same cloth as this. This is not a case of the President directing an agency to focus their money and manpower more in one area than another to accomplish the possible rather than the perfect. This is an executive order to officers of the law to stand down from their duty entirely and ignore criminals who they may – in at least some cases – be able to find and prosecute. And assuming that these same reports are accurate, the President will further order the issuance of work documents to those not currently qualified to hold them under existing law. This is not an act of regulation, which the various departments of the Executive branch issue outside the legislative process all the time. (That’s a discussion for another day.) This should be regarded in the eyes of any impartial observer as the summoning of a new law out of thin air.
Here’s another section of that pesky Constitution thing again, this time from Article I. The Congress shall have the power:
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Only Congress is vested with the power to make new laws or amend or repeal existing ones. The President has no such authority. And I find it difficult to see how any court could look at this proposed power grab and find it to be within the powers described in the Constitution. In fact, the order to stand down would be precisely the opposite of taking care that the laws be faithfully executed.
There’s on last phrase in the Constitution worth mentioning after all of this is taken into consideration… high crimes and misdemeanors. I wonder if a direct violation of the oath of office falls under that description?