Russian fighter jets violate American rights on the high seas by buzzing as close as 30 feet to American naval vessels. Three times in the past month, Russian jets have ignored rules every country observes. Secretary of State John Kerry said that our Navy ships are entitled to shoot down these Russian planes, but President Obama says nothing. He doesn’t want to upset relations with the Russians.
{mosads}On the other hand, Obama is quite comfortable upsetting relations with the U.S. Congress. What on? Deportation of people illegally here and whether or not to do his job “faithfully.”
These questions were argued in the United States Supreme Court late last month in a lawsuit brought by the state of Texas and 25 other states that challenges Obama’s 2014 executive order that deferred deportation of the parents of those individuals covered by Obama’s 2012 executive order, which deferred deportation for people brought here illegally as children. That order, Deferred Action for Childhood Arrivals (DACA) was also expanded by Obama in 2014.
Two constitutional questions are involved — to wit: Article II of the Constitution, which states that the president must “solemnly swear (or affirm) that [he or she] will faithfully execute the Office of President of the United States.” The other constitutional question is: Can the president make immigration law for millions of people and the country when the Constitution clearly directs Congress in Article I, Section 8 to exclusively make immigration law? To wit: “The Congress shall have the power to … establish an uniform Rule of Naturalization.”
The Supreme Court should easily handle this case. Only Congress, not the president, can regulate immigration. The president clearly violates Article I, Section 8 of the Constitution when he tries to rearrange existing laws by executive order.
That view is well expressed by Temple University law professor Peter J. Spiro, whose comment about the 2014 executive order is on point: “The magnitude and the formality of it is arguably unprecedented. It’s fair to say that we have never seen anything quite like this before in terms of scale.”
Congress has passed many laws since 1924 that direct the executive branch and its immigration enforcement agencies like the Immigration and Customs Enforcement (ICE) and its predecessor, the Immigration and Naturalization Service (INS), to deport people found to be here illegally. Never once has it passed a law giving the president authority to defer deportations for millions. It is a matter of scale that has embroiled the president in a lawsuit in which two courts have already ruled against his ability to put into effect what is, in reality, an amnesty program.
The Supreme Court and “inferior” Article III courts have limited presidential actions since Marbury v. Madison was decided in 1803. The Supreme Court must follow the lower courts and limit the president in this case. That would not be new. In 1982, Federal District Court Judge Robert McNichols stopped the Immigration and Naturalization Service (INS) from raiding labor camps in Washington state in a 12-page decision that declared that illegally present farm workers are entitled to the constitutional protection against illegal searches and seizures as defined in the Fourth Amendment of the Constitution. That decision forced President Reagan to craft new policies based on judicially issued search warrants. Federal District Court Judge Robert Aguilar ruled in 1987 that INS farm raids were illegal without specific information on search warrants by “informants or INS officers” of names of suspected illegally present people. Such searches and raids are illegal without warrants. Reagan had to change more policies.
Obama, with DACA and the “son of DACA” (DAPA), believes that he can order whatever se combiene (whatever suits him); that he can order federal agencies to not follow and/or disregard the law. As the president has famously said, “My job is to execute laws that are passed.”
The Supreme Court has heard arguments. A 4-4 tie vote lets the Fifth Circuit’s approval of the district court’s injunction against Obama stand. That would be satisfactory. It would be better if Justice Stephen Breyer votes with the four conservatives and the court decides 5-3 to stop the president from ruling like a king.
Contreras formerly wrote for the New American News Service of The New York Times Syndicate.