Last week, a draft memo surfaced from Homeland Security suggesting ways to administratively circumvent existing law to allow several categories of illegal immigrants to avoid deportation and, indeed, for some to be granted permanent residency. Most disturbing was the rationale. This was being proposed “in the absence of comprehensive immigration reform.” In other words, because Congress refuses to do what these bureaucrats would like to see done, they will legislate it themselves.
Regardless of your feelings on the substance of the immigration issue, this is not how a constitutional democracy should operate. Administrators administer the law, they don’t change it. That’s the legislators’ job.
When questioned, the White House downplayed the toxic memo, leaving the impression that it was nothing more than ruminations emanating from the bowels of Homeland Security. But the administration is engaged in an even more significant power play elsewhere.
A 2007 Supreme Court ruling gave the Environmental Protection Agency the authority to regulate carbon emissions if it could demonstrate that they threaten human health and the environment. The Obama EPA made precisely that finding, thereby granting itself a huge expansion of power and, noted The Washington Post, sending “a message to Congress.”
The message: Enact cap-and-trade legislation — taxing and heavily regulating carbon-based energy — or the EPA will do so unilaterally. As Frank O’Donnell of Clean Air Watch noted, such a finding “is likely to help light a fire under Congress to get moving.”
Well, Congress didn’t. Despite the “regulatory cudgel” (to again quote The Post) the administration has been waving, the Senate has repeatedly refused to acquiesce.
What to do when the executive is passively aggressive rather than actively so? Take border security. Sen. Jon Kyl, R-Ariz., reports that President Obama told him about pressure from his political left and its concern that if the border is secured, Republicans will have no incentive to support comprehensive reform (i.e., amnesty). Indeed, Homeland Security’s abandonment of the “virtual fence” on the border, combined with its lack of interest in completing the real fence that today covers only one-third of the border, gives the impression that serious border enforcement is not a high administration priority absent some Republican quid pro quo on comprehensive reform.
But border enforcement is not something to be manipulated in return for legislative favors. It is, as the administration vociferously argued in court in the Arizona case, the federal executive’s constitutional responsibility. Its job is to faithfully execute the laws. Non-execution is a dereliction of duty.
In Virginia, the Republican attorney general has just issued a ruling allowing police to ask about one’s immigration status when stopped for some other reason (e.g., a traffic violation). Heretofore, police could inquire only upon arrest and imprisonment.
Whatever your views about the result, the process is suspect. If police latitude regarding the interrogation of possible illegal immigrants is to be expanded, that’s an issue for the legislature, not the executive.
At least there is one restraint on this bloated power: the separation of powers. Such constraints on your life must first be approved by both houses of Congress. That’s called the consent of the governed. The constitutional order is meant to subject you to the will of the people’s representatives, not to the whim of a chief executive or the imagination of a loophole-seeking bureaucrat.
