Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at the House’s effort to declare President Obama’s immigration executive orders null and void.
THE STATEMENTS AT ISSUE:
“No provision of the United States Constitution, the Immigration and Nationality Act, or other federal law shall be interpreted or applied to authorize the executive branch of the government to exempt, by Executive order, regulation, or any other means, categories of persons unlawfully present in the United States from removal under the immigration laws….Any action by the executive branch with the purpose of circumventing the objectives of this statute shall be null and void and without legal effect. …This Act shall have effect retroactively, and shall apply to any such exemption made at any time.”
– Excerpt from the proposed “Executive Amnesty Prevention Act of 2014,” introduced as H.R. 5759 by Representative Ted Yoho, a Florida Republican, last month, and being considered this week as part of a package of action the U.S. House of Representatives may take in reaction to President Obama’s decision to give more than 4 million immigrants -- who entered the country illegally -- a chance to remain.
“The open-ended nature of the inquiry under the [Constitution’s] Take Care Clause – whether a particular exercise of discretion is ‘faithful’ to the law enacted by Congress – does not lend itself easily to the application of set formulas or bright-line rules. And because the exercise of enforcement discretion generally is not subject to judicial review, neither the Supreme Court nor the lower federal courts have squarely addressed the constitutional bounds. Rather, the political branches have addressed the proper application of enforcement authority through the political process.”
– Excerpt from a legal memorandum by Karl R. Thompson, a principal deputy assistant attorney general at the Justice Department’s Office of Legal Counsel, issued last month to defend the legality of a key part – but not all – of the President’s new policy initiative.
WE CHECKED THE CONSTITUTION, AND…
If the architects of the Constitution had chosen to create a parliamentary form of government, perhaps patterned on that of Great Britain, the enactment of a legislative proposal declaring that a key policy of the government was “null and void and without legal effect” would almost certainly have brought down the government. It would be difficult to imagine a more direct expression of a loss of confidence in the government’s ability to govern.
The Founders, however, wanted the new nation to be governed differently. They opted to create three branches of the national government, with competing and offsetting powers and with a considerable degree of discretion within each branch on how it would use its powers. This is the concept of “separation of powers,” and it operates on the assumption that there ordinarily will be mutual respect among the three branches, and that each will not intrude deeply into the others’ territory.
The Judicial Branch has come to be the one that keeps some balance within this structure, but it does not always agree to mediate: it sometimes chooses simply to stay on the sidelines, allowing the two elected branches to work out their differences as best they can.
The nation is now witnessing a classic illustration of how this constitutional system may, or may not, work out fundamental disagreements over a profoundly important question of public policy. That is the fight over the new policy that President Obama has adopted to avoid deporting more than 4 million undocumented immigrants, who otherwise would be eligible for “removal” (the current legal word for deportation) to their home countries.
Frustrated that the Obama initiative was taken without a new, specific grant of authority by Congress, the Republican-controlled House of Representatives is moving in a post-election session to show its fervent disapproval of the substance of the policy, as well as of the mode of its implementation, by unilateral Executive Branch action.
The House leaders are contemplating, as one option, filing a new court case on behalf of the House to challenge the Obama policy, or to add a new claim about that policy to an existing court case that targets a similar complaint about Obama’s changes in the new federal health care law, the Affordable Care Act.
But, knowing that court proceedings almost certainly will be stretched out, and that, in fact, a House lawsuit may not even be allowed to go forward to a decision, House leaders are working on a legislative alternative. A key part of that is a proposal to simply declare, by a vote of Congress, that the immigration policy is “null and void and without legal effect.”
It is quite possible, of course, that House passage of that proposal would go nowhere further, because it would not even be taken up in the Senate (at least while the Senate remains under Democratic control), and because it would be vetoed by President Obama if it reached his desk.
In fact, the resolution of condemnation is not actually in the form of binding legislation. It says at its top that it is meant to “establish a rule of construction,” which means that its authors anticipate that its effect would be to try to influence how the courts would interpret President Obama’s authority, if a challenge to it were to go forward in the courts.
However, passage of the measure, even if only by the House, would be the expression of a strong political message. It is perhaps a sign of the current depth of the political divide between the two national political parties and their Washington leaders that there is now likely to be this attempt to score points on the immigration issue, instead of actually considering the enactment of a new national policy by passing legislation directly aimed at the perceived flaws in the current system. If a new reform law were to be allowed to come to a vote in both houses of Congress, a new policy might make more sense and work better.
That, one might say, is the alternative that the Founders thought they were encouraging when they set up the new government.
