When former President Barack Obama was asked whether he would consider a moratorium on deporting undocumented migrants without a criminal record, he said: “I think it’s important to remind everybody that … I am not a king, I am head of the executive branch of government.” “I am required to follow the law.”
Obama probably was referring to the concern the Framers of the U.S. Constitution had about how much power the president would have. According to Professor Michael McConnell, they wanted a president who would be powerful enough to do the things expected of a president, but not one who would, in effect, be a king.
They resolved this problem by dividing the government into equal separate branches, each of which has separate, independent powers. Importantly, Congress has the ability to remove a president who commits an impeachable offense.
Article 1 established the legislative branch, which consists of the House of Representatives and the Senate. Congress, in addition to other enumerated responsibilities, is responsible for creating laws.
Article 2 established the executive branch, which consists of the president. The president approves and carries out the laws created by the legislative branch. This article has a Faithful Execution Clause that provides that the president “shall take Care that the Laws be faithfully executed.”
Article 3 established the judicial branch, which is charged with interpreting the laws passed by the legislative branch.
The oath of office presidents take requires them to swear that they will “support and defend the Constitution of the United States.” President Joe Biden’s rejection of the enforcement and border security provisions Congress enacted seems to be a violation of that oath.
The actions he took on Day 1 of his presidency indicate that his objective from the beginning has been to revise the civil immigration enforcement provisions in the Immigration and Nationality Act, not to faithfully execute them. And he has succeeded. There is very little similarity between Biden’s enforcement measures and the enforcement provisions Congress enacted.
His secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, issued a memorandum outlining new Guidelines for the Enforcement of Civil Immigration Law. The memorandum asserts that most of the deportable immigrants in the U.S. have been contributing members of their communities for years. “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” The guidelines focus enforcement efforts instead “on those who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
But Congress made being “present in violation of law” a deportation ground without regard to whether a migrant’s unlawful presence threatens America’s well-being. It’s not a requirement for any of the other deportation grounds Congress enacted either.
The public safety segment of Biden’s enforcement system is a problem too. Only one of the classes of “deportable aliens” that Congress enacted requires establishing that the offense deportability is based on “endangers public safety.” If Congress had wanted “a threat to public safety” to be required for all of the classes, it would have included that requirement in all of them instead of just in one of them.
A president has to exercise discretion in choosing which deportable migrants to put in removal proceedings, without a doubt, but I don’t see how it can be said that a president is taking “Care that the Laws be faithfully executed” when he categorically exempts all migrants who are just deportable for being here in violation of the law from being subject to enforcement proceedings.
The guidelines also categorically exempt deportable migrants who unlawfully entered the United States before Nov. 1, 2020. The deportation provision Congress enacted for migrants who are present in violation of law does not include such a limitation.
These restrictions prevents DHS from initiating enforcement proceedings against migrants who use nonimmigrant visitor’s visas to enter the United States lawfully and don’t leave when the period authorized for their visit has expired; according to DHS’s Fiscal Year 2022 Entry/Exit Overstay Report, more than 853,955 migrants who entered the United States by air or sea overstayed in fiscal 2022.
This figure does not include overstays who entered the United States at a land port of entry, so the actual number may be much larger. And no one knows how many migrants entered unlawfully before Nov. 1, 2020.
Biden’s disregard for statutory immigration provisions is reflected also in his border security measures.
For example, his administration promulgated a rule to discourage illegal border crossings that blatantly violates INA Section 1158(a)(1), which provides that any alien who is physically present in the United States may apply for asylum, whether or not he entered at a designated port of entry.
The administration’s rule takes that right away from migrants who cross the Southwest land border unlawfully between ports of entry without having (1) availed themselves of a lawful process, (2) presented themselves at a port of entry at a pre-scheduled time using the CBP One app, or (3) been denied asylum in a third country through which they traveled on their way to America.
They are presumed ineligible for asylum unless they can establish exceptionally compelling circumstances that have nothing to do with their asylum claims, such as that, at the time of their unlawful entry, they or a member of their family with whom they were traveling was experiencing a medical emergency or faced an extreme and imminent threat to their life or safety.
According to asylum expert Jeffrey S. Chase, the rule doesn’t create a rebuttable presumption — it creates an outright bar to asylum with three very narrow exceptions. This will result in the erroneous deportation of individuals who face a genuine threat of persecution.
The problem isn’t just that a president is exceeding his constitutional authority. The Framers gave the other branches of the government authority to deal with such a president. So why aren’t they doing it?
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanhillop-eds.blogspot.com.