Last Thursday (20/11/14) US President Barack Obama unveiled a series of
executive actions on immigration that he has dubbed the "Felons Not
Families" policy. This has been hugely controversial over doubts whether
Obama has any legal authority whatsoever to take this type of action.
After all Obama himself said in 2013 that he does not have the authority
to take this action because he is neither the Emperor nor the King of
the US.
As always in the US the cornerstone document that determines what laws
can be passed and by whom is the US Constitution. The section that deals
with immigration policy is Article 1, Section 8, Clause 4 which quite
clearly states that Congress has the power; "To establish an uniform
Rule of Naturalization .... throughout the United States." That means
that Congress and only Congress can alter the law on immigration.
To understand the context of why the Constitution makes it quite clear
that the President - as an executive power - cannot alter the law on
immigration you have to look back to the US Declaration of Independence
which is very much the parent document of the Constitution.The
Declaration of Independence lays out the need to establish a political
and legal system free from despotism and absolute tyranny. Amongst
various examples of this type of tyranny and despotism it specifically
lists that British King George III - as an executive power -
"endeavoured to prevent the population of these States; for that
purpose obstructing the Laws for Naturalization of Foreigners; refusing
to pass others to encourage their migrations hither, and raising the
conditions of new Appropriations of Lands."
Essentially what was going on at the time is that people who were born
in America - a British colony at the time - wanted to become an
independent nation. To prevent this King George III was using his
executive power over immigration to prevent people who wanted America to
be a Republic from living in America whilst making it easier for people
who wanted America to remain as a British colony to live there. In
short King George was using immigration as a way to change the
demographics of America in order to make sure that it supported him
politically.
As Obama's immigration action will disproportionally affect people from a
Hispanic background and people from a Hispanic background
overwhelmingly support Obama's Democrat Party over the opposition
Republican Party it seems clear that Obama's immigration action is
intended to alter the demographics of the US in order to make sure it
supports him politically.
In short Obama's immigration action is exactly the type of despotism and
tyranny that A.1, S.8(4) of the US Constitution was specifically written
to prevent.
Obviously though since the Declaration of Independence and then the US
Constitution were passed the US has passed other immigration laws and
other Presidents have taken executive actions some of which have been
challenged in the Courts. I don't really have the access to the
documents nor the time to check through all this case law to see if it
is relevant. However a key legal principle is that every issue is
considered on its individual merits. That means that while they provide
guidance a precedent is only binding if it is exactly the same as the
individual issue it is being applied to.
This is unlikely to be the case because all of the examples cited in the
debate so far have involved an executive order that was taken in
emergency circumstances that was later upheld by Congress. For example
JFK used executive action in 1961 to protect Cuban refugees fleeing the
revolution. In 1975-79 Ford and Carter both offered assistance to
Vietnamese refugees fleeing the revolution. In 1987 Reagan took action
to protect refugees fleeing from Nicaragua's Sandinista regime. George
Bush Senior's use of executive action in 1990 was even more benign. All
he did was to act to close a loophole in a law that had already been
passed by Congress. Therefore he was simply saving Congress the effort
of repealling a poorly written law and replacing it with a new law that
essentially changed just one sentence.
In contrast Obama's proposals have been placed before Congress time and
time again and as Obama keeps telling us time and time again Congress
has refused to pass his proposals into law. Therefore it is quite clear
that Obama is not using executive action because there is not time for
Congress to act but instead using executive action to defy Congress
which is a quite clear violation of the Constitution.
Therefore it seems obvious that the next step is that following the
signing of the executive order which Obama - as supposed Constitutional
law professor - chose to do at the close of business on Friday
(21/11/14) is for an injunction to be sought and granted preventing the
order being acted on at least until the Supreme Court has ruled on
whether the suspension of the enforcement of a law constitutes a de
facto change in the law.
The Supreme Courts task here was made a lot easier last night when Obama
declared during a speech in Chicago that he views his immigration to be
a change in the law. As such the Supreme Court can only really tell
Obama that either he doesn't know what he is talking about or strike
down his immigration actions as unlawful clearing the way for him to be
impeached and removed from office.
Obviously before triggering what will be a major constitutional crisis
in the US the Republican Party will need time to be very sure of what
they are doing. Also with there being just two years left of Obama's
term of office and a Supreme Court case taking just as long the
Republicans might be tempted to avoid upsetting the election cycle with
an impeachment provided Obama's immigration action can be blocked by an
injunction.
On the subject of Obama's seemingly utter contempt for the rule of law
we have the situation in Ferguson, Missouri, US. While we are still
waiting for the riots to stop and the dust to settle it is clear that
billions if not tens of billions of dollars worth of damage and property
destruction has taken place. Unlike a tornado, a hurricane or some
other natural disaster this destruction was entirely predictible and
entirely avoidable if only senior US government officials had behaved
differently.
After all Eric Holder's Justice Department must have known within hours
that injuries to Darren Wilson and blood in his vehicle clearly proved
that this fairy tale of an innocent black man being executed by a racist
police officer simply had not happened. However Holder proceeded to
open a Federal investigation and intendeds to continue that
investigation long after it has been well established that it is
entirely without foundation.
Therefore I think that it is only right that all those who suffered loss
and damage to property as a result of Holder's rabble-rousing should be
fully compensated. The Federal government should cover the cost of that
compensation fund because the alternative is the affected states being
forced to sue the Justice Department for damages. That would pretty much
put the Obama administation in a state of all out war with the nation
he is supposed to be leading.
(Originally Posted) 17:05 on 26/11/14 (UK date).
No comments:
Post a Comment