By Isaac Yetiv , Ph. D.
LA JOLLA, California — I recently reported critically on the US Chief Executive interfering with a co-equal branch of the government, the Judiciary. A few days later, President Obama actually encroached on the third co-equal branch, the Legislative. He announced that ” effective immediately, ” a whole group of ” “illegal immigrants” will be treated differently, exempted from the immigration laws on the books. Again, you don’t have to be a professor of constitutional law to know that this is a violation of the Constitution which clearly left the making and amending of laws in he hands of the Congress The “amendment” came in the form of an order from the president to the Secretary of Homeland Security to cease deporting illegal immigrants who entered the US when they were under the age of 16 and are now under 30 , if they meet certain easy conditions, and to allow them to obtain a work permit and other benefits.
Later, Secretary Napolitano explained that it was not a violation of the Constitution but an act of her “prosecutorial discretion.” This is strange , even disingenuous, for two reasons : first, the Secretary has a standing authority to use ” prosecutorial discretion ” (whom to prosecute and whom not to prosecute) when it applies to a few separate individuals, case by case, not to a huge group that encompasses 800,000 individuals, in the estimate of the government (other experts put the number at 1.2 million;), and second, her “prosecutorial discretion” can apply only to deportation, not to work permit and other benefits. It was really misleading.
Some scholars see this act as a usurpation of power, a mini coup which, left unchallenged, could lead to similar abuse that will erode the prerogatives of Congress as spelled out in the Constitution, and , ultimately, affect the liberty of the people. What is strange is that President Obama himself declared in September 2011 that he “was not authorized by the Constitution” to do exactly what he had just done, “that his duty as Chief Executive was “to enforce the laws on the books…” although he “was tempted…” Now apparently, he could not resist the temptation. And that’s bad for America , a dangerous precedent which will certainly be challenged by the Congress.
Already , Peter King, the Chairman of the House Homeland Security Committee, announced that his committee will “review” this presidential action , and Congressman Steve King said that he will file a lawsuit (he had sued Gov. Wilsack of Iowa , now Secretary of Agriculture, for “legislating by executive order” and won, and now believes he could win a similar case against President Obama.)
Now, on substance: There is no escaping the need and the urgency to solve the problem of “illegal immigration” of those who are already here, and those who still try to violate our borders. But that can only be done by the Congress, whatever the difficulties , not by executive fiat, because “the Rule of Law” is preeminent. A bi-partisan compromise is , of course, the best solution to all problems, but one may wonder why, for the first two years of Obama’s presidency, when he controlled both houses, he didn’t resolve this acute problem ! I believe there is a majority among the people who agree to a practical resolution rather than continue to kick the can along the road. I myself proposed a plan , last year, in a series of articles.
Here are the “five steps I proposed:
“1) As in any accident, the first thing to do is to stop the bleeding : we should close the borders as hermetically as possible, with all the manpower and technology necessary. This means warning loudly and repeatedly, then jailing and deporting ,anyone caught violating our sovereignty.
2) Deport immediately all criminal illegal aliens.
3) Declare a “period of identification” of six months to one year during which all non-criminal illegals would fill a form identifying themselves and applying for an I.D. card, state-of-the-art technology that can’t be forged. The applicants will ipso facto become “guest workers” authorized to live and work in the U.S., and pay taxes, and buy insurance etc.They will not be deported, nor will they be entitled to any “path of citizenship.” (see 5) below). Those who do not apply for the I.D.card will face deportation, if caught. Unemployed immigrants will return to their countries of their own volition.
4) Employers hiring immigrants without I.D. shall be punished severely, as well as anyone, person or institution, who will give sanctuary to criminal or non-ID illegal aliens.
5) Five years after living and working in the U.S. legally , any ID guest worker may petition the authorities for permanent residency on an individual basis, which may end up with U.S. citizenship, after full consideration of the personal circumstances and the needs of the country at that specific time. I think this is a fair, equitable, and humane solution to an arduous problem that was left to fester by successive administrations of both parties. Everybody wins, except the criminals or those who refuse, for any reason, to apply for the I.D. card. We don’t need new laws; we just need to enforce the ones on the books, and the sooner the better.”
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The president’s plan, even if it was adopted by Congress–as opposed to the “Executive order” that it is– is replete with flaws and “injustices:
1) It is discriminatory: Why the arbitrary limits of age 16-30 ? (What about 16 + 1 day, or 30+1 day?) Why advantage “students,” who have already been advantaged by receiving education at the expense of the taxpayers, over laborers who worked hard to pick our fruits and vegetables or in construction?
2) It will divide families between the lucky ones who become, with the stroke of a pen, exempted from the “Law” and their parents or siblings who will continue to fear, and hide from, the sword of Damocles of the immigration authorities hovering over their heads with the constant threat of deportation.
3) It will kill what is called “the Dream Act,” a comprehensive and thorough permanent compromise, humane to the “illegal” and beneficial to the country (as I attempted in my plan above.) because , as the adage goes, “there is nothing that last longer than the temporary.”
4) It will harm the lowest levels of wage earners of American citizens, mainly Blacks and Hispanics, who will have to compete for the limited number of jobs with an immediate addition to the labor market of about a million more “legalized” individuals. Remember that he AFL-CIO union was against the “Dream Act” initiated by the Bush administration precisely because of that competition.
5) The “legalized” will acquire, as a “fringe benefit” the right to unemployment compensation which will count in the billions. Note that no politician , government or opposition, has talked about this, but the taxpayers will certainly pay for it, or the government will beg China to lend more money and raise the debt ceiling , again, to above the frightening figure of 16 trillion dollars. This encroachment on the constitutional prerogatives of the Congress will end up in the Supreme Court. The president (Potus) is not presiding; the Congress (Cotus) is not congregating. They are campaigning and litigating. Poor us, we the other Potus, the “People of the United States.” God help us!
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Yetiv is a lecturer an freelance writer based in La Jolla, California. He may be contacted at isaac.yetiv@sdjewishworld.com