Obama Concocts Legal Pretexts for Amnesty Edicts

Published on October 7th, 2014

President Obama seems determined to issue an edict granting amnesty to illegal aliens, probably millions of them, before the end of the year. He broke his promise to proclaim it by the end of summer, to avoid a backlash against his party in the November elections, but now many observers say he will issue his decree sometime in December.

This impending rule-by-executive has aroused strong opposition, as it blatantly ignores the constitutional separation of powers. Obama is proposing to make law in authoritarian fashion, while ignoring Congress, the lawmaking branch of government under the Constitution.

What Obama proposes, and indeed what he has already done with respect to amnesty, is clearly outside the boundaries of law. But rather than let this restrain him, he and his apologists have striven mightily to concoct legal justifications for amnesty by decree.

Two years ago when Obama proclaimed amnesty for illegal aliens in the Dream Act category, the justification was the legal principle of prosecutorial discretion. It holds that authorities can set priorities of enforcement, concentrating more on some offenders and less on others.

But this explanation was hard to sustain. While prosecutorial discretion may lessen enforcement against some offenders, it does not include giving them benefits, such as the work permits granted to the Dreamers. That requires legislative action.

Accordingly, the Obama Administration shifted its legal excuse-making somewhat, and cited instances of past presidents granting certain groups of foreigners the right to remain and work in the U.S. Nevertheless, these acts were also outside the bounds of presidential authority. Congress, acting properly to check this trend, created Temporary Protected Status (TPS) to set standards for allowing foreigners who flee their countries to stay in the U.S. and work on a temporary basis.

To qualify, they must be fleeing warfare, natural disasters and other “extraordinary and temporary conditions” that would safely prevent them from going home safely. At present, a half-million Dream Act illegal aliens have signed up for legal status and the right to work in the U.S. on “temporary” but indefinitely renewable visas. Perhaps two million more unauthorized foreigners will receive the same status if Obama, as seems likely, goes ahead with his edict. Very few would qualify on grounds that they would face “extraordinary conditions” if they go home.

In any case, TPS is supposed to be temporary. Unfortunately, that part of it has never been enforced. Case in point: There are 10,000 Liberians who fled warfare in their country in 1991 and never returned even after the warfare ended. Almost certainly the same will happen with all the illegal aliens who have benefitted, or will benefit, from Obama’s disregard of legality. Their “temporary” status, in reality, will become permanent.

Yes, Obama is breaking the law, his fig leaves of legal justification notwithstanding. That, however, won’t necessarily stop him because the law is not self-enforcing. If Congress cares about its constitutional authority, it will have to act to stop Obama if he goes ahead with his edict. And if our representatives and senators show they don’t care, citizens who value the Constitution and the freedoms it protects will have to make them care.

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