Tag archives: Immigration

The Constitution and Executive Orders

by Rob Schwarzwalder

November 20, 2014

Family Research Council does not take a position on immigration reform. We’ve got enough on our plate, from protecting unborn children and their mothers from a predatory abortion industry and sustaining traditional marriage as the foundation of our culture to protecting religious liberty as the “first freedom” of our republic.

However, we take a strong position on the Constitution: We believe in it. We agree with the Founders that a written text contains objective meanings and that, to borrow a phrase from Jefferson, neither an activist judiciary nor an impatient president has a right to turn the Constitution into a “thing of wax.”

That’s why conservatives have every right to be concerned, even alarmed, by the President’s pending announcement of an Executive Order on U.S. immigration policy.

The Constitution invests the President with the authority to enact policies to ensure the faithful execution of laws passed by Congress and signed into law by the Executive (Section 3, Article II), and the “executive power” (or “vesting” power) granted the President (Article II, Section I) universally is recognized by constitutional scholars as involving only execution of federal laws, removing from the Executive Branch those officers who serve at the President’s discretion, and the formation and execution of foreign policy.

Then-Supreme Court Justice Robert Jackson in Youngstown Sheet & Tube Co. v Sawyer (1952) offered a three-fold test for whether an Executive Order is valid:

  • When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
  • When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”
  • When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter … Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

The operative phrase in the above bullets is in the third paragraph: “measures incompatible with the expressed or implied will of Congress.” Clearly, as National Affairs’ Andrew Evans writes, “President Obama’s executive order is intended as a substitute for a law that Congress has not passed.

Finally, federal Courts have ruled that Executive Orders that surpass the express intent of Congress can only be executed in times of national emergency. Even then, according to the

U.S. Code, “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

In other words, even in the extreme event of a national emergency, the President has to justify by what authority he is declaring such emergency. And clearly, while both legal and illegal immigration policy involve a host of difficult issues, the Administration has not demonstrated, nor can it demonstrate, that any such emergency exists. If it did, why did the President – as he himself put it – wait a full year for Congress to act?

Legal scholar William J. Olson and Rutgers University historian Alan Woll have rightly noted that “Powers were separated not to make government more efficient but to restrain the natural bent of men, even presidents, to act as tyrants.” Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.

Welcoming Dmitry

by Robert Morrison

November 13, 2012

My wife and I rolled into the Exxon Mobil station to fill up our tank. Gas was cheap. (At $3.17 a gallon, that at least passes for cheap under this administration.) I stood in line to pre-pay. The kid behind the counter had a name tag: Dmitry. I heard him speaking to the person in front of me with a heavy Slavic accent.

When I came up to the counter, he asked which pump. Nomyer Shest, I said with a straight face. Number Six. Dmitry wasas the Brits would saygobsmacked. He didnt expect to see anyone in the area speaking Russian to him. I was startled, too, since I didnt expect to find any Russians in that neighborhood.

We quickly broke into razgavorconversation. Dmitry seemed genuinely excited to meet someone to whom he could speak his mother tongue. I was truly excited to realize that the language I learned in the Coast Guardeons agocame back to me so readily. (And without the obligatory shot of that clear white liquid that seems to be so essential to any conversation in Russian.)

It was two days after the 2012 presidential election. The state we were traveling through had gone for President Obama. Demographics are changing was the mantra of the election night broadcasts. They sure are, Id say, if you can hear Russian being spoken in that remote area.

Last summer, on our way to the beach, we stopped at a McDonald’s just over the Delaware line. A clutch of Russians were there, happily burbling away in their language. Surrounded as I was by family, all eager to press on, I didnt try any shutkas (jokes) with the Big Mac crowd.

What are they doing in Delaware? All over America, immigration is changing our country. We need to know more about the people who are coming here. Many of us see them in church. Many of the immigrants come to America, yearning to breathe free, and eager to find a sense of community here.

In Maryland, where we live, you can hardly pass a church without seeing either Spanish-language signs for servicesoften Pentecostal servicesin mainline churches. Korean language signs are up, too, although many of these congregations have churches of their own.

In 1800, New Yorker Aaron Burr scurried around Manhattan gathering the votes of Germans, Dutch, Scots-Irish, French Huguenot and Irish immigrants. Burr was not interested in political philosophy so much as in winning elections.

Thats why youll probably never see the collected writings of Aaron Burr. Things written remain, he said, as a caution. (Ill bet Gen. Petraeus wishes he had observed that warning.)

Still, Aaron Burrs actions in New York City tipped the Empire State for the Jefferson-Burr ticket that year. New Yorks 12 Electoral Votes carried the election for the Jeffersonian Republicans.

The Federalists had passed the Alien & Sedition Acts in 1798. They viewed the immigrants with suspicion. They fretted over the demographics. They feared they would never win another election. They never did.

I must admit Im rather tickled at the idea I will get to speak Russianand not have to go to Russia. There is not much in Vladimir Putins not-quite-so-evil empire to attract me.

But I welcome those like Dmitry who come here seeking liberty, seeking an opportunity to make a better life for themselves and their children. I believe we can enlist them in the pro-life, pro-family cause. I believe they will rally to the defense of religious freedom.

When Elian Gonzales, the 6-year old refugee from Cuba, was seized at gunpoint by federal agents on orders of Bill Clintons Attorney General, Janet Reno, Cuban-Americans were outraged. So was I.

Renos raiders grabbed that little boy from the arms of his loving family on Easter Sunday morning. That November, the Cuban-Americans voted overwhelmingly for George W. Bush. Florida turned out to be crucial in the 2000 elections, when Bush won by a mere 537 votes statewide.

Immigrants have many times determined presidential outcomes. Are we their friends? Shouldnt we be?

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