News analyst Larry Allison (and co-host of the Vernuccio/Allison Report) poses a fascinating question: What would happen if Congress, in January following the swearing-in of the new session, passes an immigration bill and sends it to the White House?
Since the legislative branch will be solidly controlled by Republicans, it is likely that the measure would be one that Mr. Obama would disagree with. But could the President then claim any legitimacy for taking executive action, since his entire premise is that he acted because Congress did not?
That excuse for using executive action is astoundingly flimsy to begin with. The Constitution does not permit the President to enact legislative-like measures when Congress doesn’t act. Not acting, in fact, is in many ways an expression of Congressional will. Their agenda may differ substantially from the President’s, as it does in this case. The majority of Americans demand that the border be secured before immigration reform takes place, and the House of Representatives appears to agree.
Incidentally, the oft-stated refrain describing the current Congress as “do-nothing” is factually incorrect. The House of Representatives has passed approximately 370 measures, some with bipartisan support, that Senate Majority Leader Harry Reid has refused to consider in the Senate because they do not comply with his agenda. Somehow, that tidbit of information barely gets mentioned.
The exclusive right of Congress to enact legislation is so central to the American form of government that it constitutes Article 1, Section 1 of the Constitution: “All legislative powers herein granted shall be vested in a Congress…”
Mr. Obama has falsely alleged that Presidents Reagan and Bush (41) engaged in similar actions. That is incorrect. As Hans von Spakovsky recently wrote in the Daily Signal, both acted under authority of the 1986 Immigration and Reform Control Act. Unlike Mr. Obama, they did not create a whole new legislative concept.
Similarly, the White House claim that the President has authority to make wholescale changes in immigration enforcement based on the executive ability to defer deportations is lacking in legal merit. The President may take some limited action, but not to the extent of essentially repealing the entire legislative framework. Consider: While the President may grant an executive pardon to a convicted criminal, he does not have the power to essentially repeal all enforcement of the law that criminal was convicted of violating.
The President is on even more shaky grounds when he discusses related work permits. The financial aspects of the proposal raise Constitutional objections: since the White House plan would involve federal spending, which must be authorized by Congress, how does the President intend to legally pay for his plan?
The silence from a large portion of the media, the legal community, progressive politicians and academicians concerns the shunting aside of Constitutional provisions is deeply disturbing. Disagreement over specific issues, such as immigration or health care, is a healthy exercise in democracy. However, ignoring the basic governing document of the nation is a challenge to the very underpinnings of the United States. If we are, indeed, to ignore the Constitution, what then takes its place?