A Quick Case for the Supreme Court?

by

       M. Richard Maxson

      His Majesty, President Obama will announce in a prime-time TV speech tonight the executive actions he will take to change U.S. immigration law.  After repeatedly insisting that he could not bypass Congress and change immigration laws on his own, President Obama now believes he has found a way to do just that. He will make his announcement tonight and it is expected to temporarily protect roughly 5 million illegal immigrants from deportation. He will do this by prosecutorial discretion. The same way that he is allowing medical marijuana to flourish in the face of federal law by not prosecuting.

      This will take the fear of arrest and deportation off the table for the millions of illegal aliens in this country, but is it constitutional? Could it be that a presidential action may be lawful at the same time that it is unconstitutional?  The president does have the legal power to defer deportations. This is a power traditionally recognized as inherent in the presidency that enables him to defer or modify all federal law enforcement. The theory is that the president needs the ability to allocate resources as the changing times, emergent events and public needs may require. The check on the exercise of prosecutorial discretion is that the action cannot be used by either improper executive motive or effective nullification of a law.

      In exploring this we must ask, if the president nullifies deportations on such a grand scale isn't the effect  the nullification of federal laws?  By conferring temporary legal status upon foreign nationals who have not achieved it under the law, providing they meet criteria that he will establish, the president affects huge numbers of persons and produces a result that is the opposite of what the law requires. It is our opinion that it does.

      It is unconstitutional for the president to nullify federal law. It is unconstitutional for him to refuse to enforce laws that affect millions of persons and billions of dollars. It is unconstitutional for him to refuse to enforce laws merely because he disagrees with them -- particularly laws that pre-existed his presidential oaths. And it is unconstitutional for him to rewrite laws, even if he is doing so to make them more just. Some may agree with his motives but in doing so they are advocating Fascism.

      The reaction by some in Congress reflects the chilling reality of our times. "We are unfortunately witnessing a constitutional crisis. What President Obama's doing is he is defying the law, he's defying the Constitution. This is a moment of testing and I know that Congress will stand up and side with the people against the lawless president," stated one high ranking Senator. "The president can't do this. This goes against the fundamental separation of powers that we have in our country."

       The Constitution requires, if you want to change immigration law is the president has to work with Congress. The Framers of the Constitution required that every president swear to do his job “faithfully” to

serve as a reminder to him that his job requires fidelity to the enforcement of laws with which he may disagree. The American people, Congress, and the courts need to know we have a president who will enforce the laws, whether he agrees with them or not. Without presidential fidelity to the rule of law, we have a king, not a president.

       As a Constitutionalist, I know you understand the danger of the Liberal Socialist Progressive movement and its assault on America's Constitution and its underlying principles of liberty and limited government. We must defend this Constitution and we must defend the separation of powers. That is what this comes down to, our constitutional oaths when the president potentially violates his the House of Representatives should immediately pass a resolution saying that Obama's executive action is "contrary to the will" of the House. That would set up, I think, a very clear-cut case in the (Supreme) Court and once the executive action on immigration is found to be unconstitutional, Congress could issue a "resolution of disapproval that would stipulate the constitutional violations and the limitations of the powers of the president." Impeachment should not be on the table. He is only a symptom of America's problem.