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Executive Orders and the Constitution

Thus Spake Obama

by FAISAL MOGHUL

He came, he saw, he betrayed!

Barack Obama campaigned on the twin themes of hope and change. His soothing sales pitch reassured both America and the world that his administration would mark a stark difference from the previous one; that diplomacy, transparency and respect for the rule of law would be his creed, unlike the secrecy and utter disdain for the constitution that was the hallmark of the Bush-Cheney era.

But actions speak louder than words.

From his continuation of the Bush-era policies of torture, mass surveillance and indefinite detention to his refusal to shut down Guantanamo Bay, from military misadventures in Libya waged without Congressional authorization to using “kill lists” for targeted assassinations — one cannot ignore the striking dissonance between candidate Obama’s promises on one hand, and President Obama’s actions on the other.

With every passing day in power, the former University of Chicago professor of constitutional law seems to be forgetting the same constitutional principles of separation of powers and checks and balances that he not only taught his students for a decade but also fervently advocated for during his campaign.

To quote William Safire, “on what legal meat does this our Ceaser feed?”

The latest in this series of constitutional nightmares comes in the form of an executive decree to temporarily suspend the deportation of illegal aliens in the United States if they were brought here before they turned 16 and are younger than 30, have been in the country for at least five continuous years, have no criminal history, graduated from a U.S. high school, or served in the military. This is even though just over two years ago the U.S. senate considered a similar proposal, the Development, Relief, and Education for Alien Minors (DREAM) Act, which failed to garner the required 60 votes needed to become law.

Obama’s back-door DREAM Act simply ignores the will of congress by implementing some parts of the bill that Congress expressly rejected. Having lived under the tyranny of King George III, the founding fathers were wary of giving the executive too much power, which is why Madison forewarned future generations in Federalist 47 that “there can be no liberty where the legislative and executive powers are united in the same person.”

Lest you think this is nitpicking over constitutional niceties, remember that Obama himself admitted this exact point last year, that the executive cannot unilaterally suspend deportations, and that any changes in the immigration framework will have to be handled through Congress:

With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed — and I know that everybody here at Bell is studying hard so you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.

There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.1

Madison is probably rolling in his grave!

Of course, supporters of this executive order will contend that there is ample historical precedent supporting this executive order. It is true that President Jimmy Carter exercised his executive authority to allow Cubans into the United States in 1980, President Bill Clinton did the same in 1994, and recently, in May 2010, Obama’s administration granted parole (allowing non-citizens to remain in the US lawfully) to spouses, parents and children of U.S. citizens serving in the military.

The point of this article is not to attack immigrants. Temporarily suspending the deportation of the children of illegal immigrants, who were brought to the United States for no fault of their own, is a humane and just use of executive power. Moreover, it will also allow the government to direct its resources to fixing more important aspects of the nation’s broken immigration system.

But noble intentions can never be a sound basis for judging the constitutionality or righteousness of government action, as the path to hell is always paved with good intentions.

And when the executive rides roughshod over the constitution for the sake of pre-election politicking, he ceases to fulfill his constitutional responsibility to “take care that the laws be faithfully executed.”

Faisal Moghul is  New York and DC licensed attorney practicing business, employment and immigration law in DC. 

Notes.

1 See http://dailycaller.com/2012/06/15/flashback-obama-said-he-wouldnt-do-executive-order-on-deportations-weve-got-three-branches-of-government/#ixzz1yG6Mjfh1