by Robert Charles
Understanding
why pending executive action by President Obama on immigration,
residency, and citizenship are objectionable, imprudent, and
unconstitutional – and what can be done legally and politically about
them, if he proceeds – requires a snapshot of history and law. Ten
arguments stand between the president and such bold, unilateral actions.
First,
executive directives of all kinds – and some have been creative –
started with George Washington. They are theoretically justified by the
indeterminate “executive powers” vested in each commander in chief by
Article II of the U.S. Constitution. Their legal justification begins
and ends there, and is necessarily nested in a larger constitutional
text and intent, which has always favored avoiding unilateral executive
actions unless absolutely necessary (as for national security). Thus,
unless ceremonial or peripheral, the justification for directing
agencies one way or another has been to clarify a law – never to create
one.
So,
here is the rub. Since the over-assertion of executive powers by
Franklin D. Roosevelt (FDR), the U.S. Supreme Court and federal
appellate courts have ruled unconstitutional any Executive Order (EO)
that seeks to usurp or effectively legislate where Congress has spoken
or reserves the right to speak.
Thus,
for example, the U.S. Supreme Court overturned five of FDR’s EOs (6199,
6204, 6256, 6284 and 6855) for overreaching. Similarly, the Court
threw out President Truman's EO 10340, in which he attempted to control
the country’s steel mills to put down labor strife. The Court was
clear: the EO sought to make law, not clarify it. Again, an appellate
court confidently nixed President Clinton’s EO 12954, which sought to
prevent federal contracting with those who hire strike breakers. In the
last case, an obvious conflict with existing law invalidated the EO.
Now
we come to today. The first three arguments against the Obama EO are
simple, and should be swiftly confronted in court if he issues broad
executive action bestowing new rights on those otherwise not entitled to
them under existing law or patently misinterpreting existing law to
serve a political end, such as altering the process of citizenship. In
sum, if he (one) obviously exceeds all formerly accepted constitutional
authority, (two) seeks to legislate where the law is already clear or is
clearly the province of Congress, or (three) intentionally disregards
the law, the EO should be legally discarded, or viewed as “void ab
initio” – that is, of no credibility or force.
Four: If
you issue an EO making permanent residents or citizens out of a
significant number (say, five to seven million) illegal, unentitled, or
“undocumented” foreigners on U.S. soil, you are instantly obligating
federal taxpayers and states to afford these newly minted “Americans” or
“newly legal residents” any number of privileges, entitlements, and
rights not previously held, above and beyond not being deported. This
plainly costs taxpayers and States money, offering them every reason to
appeal the decision and apparent standing to do so.
Next, there is the prudential side of the ledger.
Argument
five: If you issue an EO that instantly grants “stay and work” status
to currently illegal aliens, even if they have legal relatives, you
instantly soak up part of the job pool from which real Americans are
hoping to gain employment. In effect, you hammering the working-class
Americans again.
Six:
If you issue this EO, you instantly send an international message – a
new and shocking invitation: “We just gave away the citizenship or
residency farm – so please line up or flood over and come get yours.”
In effect, such an EO will trigger multiple future waves of illegal
migration for economic purposes by new and unconnected illegal aliens
who see that our laws are not being honored, and so they will come for
free entry, too – if not at once, then soon enough.
Seven:
For every justification based on an illegal alien having a legal U.S.
relative, we can now expect that the same argument will be made by the
five to seven million newly minted “instant citizens” or “instant legal
residents.” In short, one thing all members of humanity – those legal
and illegal – have in common is relatives. Once all those here
illegally with relatives make their relatives legal, the newly legal
(and formerly illegal) relatives will now declare that they, wonder of
wonder, also have relatives – that deserve to be legal. Ad infinitum.
Eight:
Status without assimilation is irrelevant, counterproductive, and
historically illegal. Legal status is traditionally achieved by
processes of extended learning, intentional assimilation, and legal
naturalization – all at a pace set by national need and absorption
capacity. Without understanding the American history, language, laws,
values, civic duties, and social expectations, and what it takes to live
(and what the nation expects of those living) lawfully, a resident made
instantly legal is not American. Absent the process that Congress has
considered necessary for assimilation, we would become no more than a
big holding pen, a mismatched conglomerate of humanity, with nothing in
common but place.
That
is not America, never has been, and cannot be. To be American takes an
aspiration, and a commitment. It takes time, effort, and lawful
process, as well as social integration. A president can no more declare
an unprepared member of humanity American than he can declare red blue
or vice versa. Assimilation means following a long and winding legal,
social, economic and legitimate process. It takes time; that is the
whole point.
Nine:
Just as adopting a child into a home affects other family members,
instantly making “legal residents” or “citizens” out of five or seven
million people – many of whom snuck into the country unlawfully – would
have profound effects on the rest of the country. It cheapens the brand
we call American; it undermines the values and processes in which we
take pride. It slights and diminishes the struggle of those who have
strived long and hard to become naturalized citizens, or permanent
residents, many of whom are also from these same countries. It says
that laws under which we live are of less value, and can be unilaterally
upended by one man. It reduces respect for all those who have come to
our shores legally, and who take pride in being legally American. This
is no small matter. We are, collectively, only what we say we are and
live up to – when we cheapen the definition of American, we cheapen it
for everyone.
Finally: We
are a nation and people of laws, not of whimsy or capricious acts by
self-adulating leaders, not subject to any dictator or the assumption of
power by this or that president. These lines are well-drawn. The U.S.
Supreme Court long ago made the point. We are not ruled by executive
order, never have been, legally and prudentially cannot be, and should
not now be. For any president to believe that he has the power to step
upon all these legal and prudential considerations, because he has a pen
and a phone, indifference to rule of law, or illusions of unilateral
authority is simply misguided.
Nevertheless,
if the dark day comes when unilateral authority is asserted in these
new and sweeping ways by a president, the answer is clear. Instant
moves to court for actions to stay and then reverse these executive
orders would be fitting. Preparations should be made for interlocutory
appeals, specific relief by states and others with standing, preliminary
and permanent injunctions, and defense of individual and collective
rights across the country in federal courts.
On
the political front, Democrats and Republicans who respect our
Republic’s history and can see into the future should prepare to garner
and act upon legislation that can be passed swiftly with a
supermajority, making void the presumptive executive orders, and
Americans should speak – as they did once already in November – with one
voice, saying we are ruled not by one man, but by ourselves through
Congress. That is the text, design, history, and enduring intent of our
Constitution. If there can be disagreements about other things, there
can be no disagreement about that.
Robert
B. Charles is a former assistant secretary of state under Colin Powell,
former counsel to a congressional oversight committee, a former
litigator, and a teacher of government oversight at Harvard’s extension
school. He is currently a consultant in Washington, D.C.
Source: http://www.americanthinker.com/articles/2014/11/ten_arguments_against_obamas_executive_action.html
Copyright - Original materials copyright (c) by the authors.
