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Immigration on the Anniversary of the Constitution

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This column by ACRU Policy Board member Hans von Spakovsky was published September 22, 2017 by The Orange County Register.

Even as we celebrate the 230th anniversary of the Constitution, deep divisions remain in our nation. One of the most contentious issues we are grappling with is immigration, both legal and illegal. What should we do about it, and who has the power to make these decisions? These are some of the questions up for debate at Claremont Institute’s “Constitution Day” event on Sept. 23.

Since entering the White House, Donald Trump has placed three immigration-related issues squarely in the spotlight. He has issued executive orders to withhold some federal grants to sanctuary cities, end President Obama’s Deferred Action for Childhood Arrivals program, and temporarily suspend entry from six terrorist safe havens in Africa and the Middle East.

Each order sparked emotional outbursts and court challenges. Yet on all of these issues, the president has acted within his constitutional authority, contrary to the assertions of many in the media and the courts.

Under Art. I, Sec. 8, Congress has plenary authority to establish a “uniform Rule of Naturalization.” Thus, Congress has 100 percent of the power to determine the rules for immigrating to this country, whether as a visitor or tourist or as someone who wants to become a naturalized citizen.

The president has the ability to make immigration decisions, too, but only to the extent that Congress has delegated such authority to him. Under Art. II, Sec. 3, he has a duty to “take care that the laws be faithfully executed.” That means he has an obligation to enforce federal immigration law, an obligation that Barack Obama sadly neglected. A president cannot rewrite, ignore or otherwise change existing immigration law simply because he disagrees with the law as a matter of public policy.

When it comes to terminating the eligibility of sanctuary cities for grants from the Department of Justice, the president (and his attorney general) are acting fully within the Constitution and their delegated authority. We are not talking about federal entitlement funds for programs like Social Security or Medicare. The Trump administration wants to cut off access only to discretionary funds. (Local jurisdictions apply for them, and the attorney general decides who gets the available funds.)

The administration is simply asking applicants to certify that they will comply with federal immigration laws and not obstruct federal enforcement. Making Justice Department grants conditional upon those two requirements is both common sense and entirely lawful and constitutional.

Ending the DACA program is also fully in keeping with the Constitution and federal immigration law. DACA was implemented by President Obama. It assured people who entered the country illegally as minors that they would not be deported, that they could work legally, and that they had access to Social Security and other government benefits. But Congress never gave President Obama the authority to provide a pseudo-amnesty and government benefits to illegal aliens.

As the Fifth Circuit Court of Appeals said when it upheld an injunction against a second, similar program (the Deferred Action for Parents of Americans and Lawful Permanent Residents program), the president’s refusal to remove illegal aliens “does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.”

The plain fact is that President Obama had no authority to implement the DACA program in the first place. Ending the program and giving the responsibility back to Congress is the proper, constitutional action for the president to take.

As to the temporary travel ban, that is an area of immigration law where Congress has given the president extensive authority. Federal law (8 U.S.C. §1182(f)) specifically allows the president to suspend the entry of any aliens when he believes their entry would be “detrimental to the interests of the United States.”

A long string of U.S. Supreme Court decisions has upheld that authority, and many prior presidents have used it to bar entry to broad classes of aliens from specific countries. In this case, the six nations covered by the executive order were all identified by the Obama administration as either state sponsors of terrorism or “countries of concern” because of extensive terrorist activity.

The courts owe substantial deference to the immigration and national security decisions of Congress and the president. Unfortunately, too many courts have refused to give that deference.

Those who criticize the president for actually enforcing our immigration laws and for ending the unconstitutional DACA program and deferring to Congress seem to believe that the Constitution and its specific delegation of powers should be recognized only when they produce the policies they want. But the ends do not justify the means —- especially if we want to preserve a constitutional republic that protects liberty, freedom and economic opportunity.