The Deferred Action for Childhood Arrivals program created in 2012 by executive order by former President Barack Obama was 100 percent unconstitutional; he knew it when he did it, as does everyone who seriously studies the Constitution. He broke the law.
Separation of powers, with one body making the law, another enforcing it and a third adjudicating it, is the most basic principle of the Constitution. In it, all federal law originates with and is processed through Congress with the president having only the authority to sign or veto law made by Congress, and thereafter the president is obligated to enforce all law processed in the same manner, whether he agrees with it or not.
In every presidential inauguration, we listen to the president pledge by oath to be obedient to it. “I do solemnly swear… that I will faithfully execute the Office of President of the United States and will to the best of my ability, preserve, protect and defend the Constitution of the United States,” according to Article II, Section 1, Clause 8. Making his own law, or refusing to enforce existing law coming through the same process, is grounds for impeachment.
Only Congress can make law, as per Article I, Section 1. Executive orders that have the force and effect of law are entirely unconstitutional. Those supporting the Constitution must oppose made-up law by a single person regardless of political party or personal agreement with the action. Ignoring that point is how law and order breaks down, and chaos, even revolution, results.
In ignoring the separation of powers, Obama’s has committed one of the most willful violations of the Constitution in U.S. history, and, as indicated, it was certainly grounds for impeachment. But Republicans were afraid to pursue this course. Congress had repeatedly failed to pass legislation to create a way to assimilate children of illegal aliens who, through no fault of their own, only know this country. Still, returning immigrants who have entered the U.S. illegally to their own country was and still is the law of the land that every president, member of Congress and elected state or federal official takes an oath to uphold. Obama violated his oath of office by not enforcing the constitutional law of the land, as would President Donald Trump, if he did not return all legislative powers back to Congress by not renewing the unconstitutional DACA program.
“In other words, the executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions,” Attorney General Jeff Sessions correctly said. “Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the executive branch.”
Authority over immigration law was specifically placed with Congress, which was given the power “to establish a uniform rule of naturalization” in Article I, Section 8, Clause 4. In Clause 18 of the same section, it said that Congress shall have the power “to make all laws necessary and proper for carrying into execution the foregoing powers.”
The supreme law of the land for immigration is called the Immigration and Nationality Act. Section 274 of this document, titled “Bringing in and Harboring Certain Aliens,” requires fines and/or imprisonment of anyone who aids and abets illegal aliens.
Any person who “knowingly” attempts to bring in an alien, has knowledge of, attempts to transport an alien within the U.S., “conceals, harbors or shields from detection or attempts to conceal, harbor or shield from detection, such alien in any place, including any building or any means of transportation; …shall be punished.” Punishment is “for each alien in respect to whom such a violation occurs.” All offenses bring a fine “under Title 18, United States Code” and/or imprisonment ranging from 5 to 20 years depending upon the seriousness of the offense.
Illegal immigration law is clear and perhaps too harsh for the children of those who willfully broke the law. Still, many of those brought into the country as children are now adults, and the U.S. may be the only country they know because of Congress’s inability to build a wall previously and seriously enforce existing law, which is hard to do when the president is the greatest violator.
Obama did not take well the news of Trump’s returning the decisions on immigration to Congress. He referred to it as “self-defeating “ and “cruel.” But it was he who violated existing law and gave these people false hope. In this sense, he must share in the accusation of having been cruel, and now he is solely responsible for the anti-Trump rallies on having ended DACA.
Democrats have been successful in persuading immigrants who enter the country illegally to believe that they are their only hope by seeming to offer them benefits as they cross the border. Republicans may have a rare opportunity to break this trend and appeal to this group of about 800,000 people by allowing them a path to citizenship. This option is not to suggest sympathy to the parents but rather to the children who otherwise have no reason to explore interest in any other political party. By allowing the DACA program a six-month extension instead of immediate closure, which he could have done, Trump has given Congress an opportunity to give these people a home in the only country that they know. This move is wise on his part because if Congress does not now respond, they alone are to blame – not he. That is as it should be. It is also constitutional.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.