Congress making immigration law is constitutionally correct
The Deferred Action for Childhood Arrivals (DACA) program, created in 2012 by executive order by then-President Barack Obama, was 100 percent unconstitutional. He knew it when he did it, as does everyone who seriously studies the Constitution. He broke the law.
Separation of powers with one body making the law, another enforcing it, and a third adjudicating it, is the most basic principle of the Constitution. Article I, Section 1 states that "all" federal law originates
Obama's creation of the DACA program was one of the most willful violations of the Constitution in U.S. history and, as a result, grounds for impeachment. But Republicans were afraid to pursue this course.
It is true that under Obama, Congress repeatedly failed to pass legislation creating a way to assimilate children of illegal aliens who came to this country through no fault of their own. Still, returning illegal immigrants to their own country was/is the law of the land. Obama violated his oath of office by not enforcing it.
Attorney General Jeff Sessions correctly stated, “In other words, the executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions… Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”
The Constitution specifically places immigration law with Congress, through its power “to establish an uniform Rule of Naturalization” (Article I, Section 8, Clause 4). Clause 18 of the same section states that Congress shall have the power “to make all laws necessary and proper for carrying into execution the foregoing Powers.”
The supreme law of the land for immigration is called the Immigration and Nationality Act (INA). Section 274 - titled Bringing in and Harboring Certain Aliens - requires fines and/or imprisonment of anyone who aids and abets illegal aliens. Any person who knowingly attempts to bring in an alien, has knowledge of, attempts to transport an alien within the U.S., or “conceals, harbors or shields from detection or attempts to conceal, harbor or shield from detection, such alien in any place, including any building or any means of transportation… shall be punished.” Punishment is “for each alien in respect to whom such a violation occurs,” Section 274 states. All offenses bring a fine and/or imprisonment ranging from 5 to 20 years depending upon the seriousness of the offense.
Illegal immigration law is clear and perhaps too harsh for the children of those who willfully broke the law. Many of those children are now adults because of Congress's inability to build a wall previously and seriously enforce existing law.
Obama did not take well the news of President Trump's returning the decisions on immigration to Congress. He referred to it as “self-defeating “ and “cruel.” But it was he who violated existing law and gave these people false hope. In this sense he must share in the accusation of having been cruel.
Democrats have been successful in persuading illegals, by seemingly offering benefits as they cross the border, that their only hope is through them. Republicans may have a rare opportunity to break this trend and appeal to this group of about 800,000 by allowing them a path to citizenship.
This is not to suggest sympathy to the parents but to the children who otherwise have no reason to explore any other political party. Trump, by allowing the DACA program a six-month extension, instead of immediate closure, which he could have done, has given Congress an opportunity to give these people a home in the only country that they know. This is wise on his part because if Congress does not now respond, its members alone are to blame. This is as it should be. It is also constitutional.
Dr. Pease is a specialist on the United States Constitution and its application to current events. He has taught history and political science for more than 25 years at Taft College. To read more of his articles, go to libertyunderfire.org.
(Posted 10/8/17; Opinion: General)
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