This column by ACRU Senior Legal Analyst Ken Klukowski was published June 17, 2012 on Breitbart.com.
President Obama’s new amnesty policy regarding illegal aliens violates the law. But there’s probably no route to trump it either in Congress or in court, so the only recourse is for the American people to trump it by electing a new president.
Obama’s actions on granting backdoor amnesty fall into two different stages. Each is illegal for different reasons. However, occasionally situations can arise in our constitutional system where there is a “right without a remedy,” where people’s rights are being violated but there’s nothing a court can do about it. That’s what’s happening here.
Although the details are still unclear, according to reports Obama’s new policy will be not to deport illegal aliens if they (1) were brought to America before age 16, (2) have not yet reached age 30, (3) have no criminal record, (4) have graduated from high school, and (5) are either pursuing college or serving in the military. Aliens meeting all five criteria can be issued work visas and won’t be deported.
The argument Obama is using is that prosecutorial discretion gives the executive branch sole discretion to determining which cases to allocate resources to, so they can decide which aliens to deport. One problem with that argument is that there’s a difference between deciding case-by-case which ones to go after, versus making a policy of not going after anyone in a very broad category. Another is that such discretion doesn’t in any way extend to issuing work visas.
Commentators are already talking about lawsuits. There are two parts to this policy, and neither can be challenged in court.
The first part consists of the president’s speech and any executive orders he makes pursuant to that speech. (Such as ordering the Department of Homeland Security (DHS) to stop deportations.)
No one can sue over those, because there’s no right of action in federal court over presidential speeches or orders. (Unless, perhaps, if a president issues an order directly against a specific person or organization, which is not the case here.) You must cite to some constitutional provision or federal statute that empowers you to take an issue to court.
A right of action will be created when DHS Secretary Janet Napolitano acts on Obama’s order by creating regulations for issuing the work permits and stopping deportations. The Administration Procedure Act (APA) creates a cause of action for any regulation that is “contrary to law.” These new lawless rules and regulations certainly qualify.
However, you probably still can’t have a lawsuit because no one has standing. In order to have standing to sue in federal court, a plaintiff must assert a personal injury that is different from an abstract injury to the public at large; one that is clear and concrete; one that can be directly traced to the defendant; and one that a court can fix by giving the plaintiff what he asks in the lawsuit.
As the Supreme Court reiterated again just last year: “By rules consistent with the longstanding practices of Anglo-American courts a plaintiff who seeks to invoke the federal judicial power must assert more than just the generalized interest of all citizens in constitutional governance.” Likely, no one has standing here because no one can show how they are directly injured in a concrete fashion that is different from most other Americans.
Congressman Steve King (R-IA) is willing to sue President Obama. While King is a stalwart constitutional conservative warrior (and full disclosure–as a lawyer I have represented King on amicus briefs in a couple cases), he can’t sue on this one. Even if Congress has standing to sue over immigration, in its 1997 case Raines v. Byrd the Supreme Court held that Congress can only assert a right to sue by a majority of the House or Senate voting for a resolution authorizing the lawsuit. No lone congressman or group of congressmen has standing to act for the House.
Turning to congressional action, there are only two theoretically possible routes, but both would fail.
The first is the Congressional Review Act (CRA). When an administration creates new rules and regulations, Congress can pass a resolution of disapproval. However, under the Constitution any legal enactment must pass both the House and Senate, and then either be signed by the president–or, if he vetoes it, his veto can be overridden by a two-thirds vote of both houses.
That’s unrealistic here. Even if you could get such a House-passed resolution through the Senate, Obama would veto it. And there’s no chance whatsoever that you could get two-thirds in both the House and Senate (that’s 290 congressmen and 67 senators) to override.
The second option is impeachment. A president can be impeached for “high crimes and misdemeanors.” The House can impeach by majority vote (218 congressmen), and the Senate requires two-thirds to remove anyone from office.
That’s a non-starter. Although the Constitution doesn’t define high crimes and misdemeanors, it specifies two examples of bribery and treason, and the historical understanding is that it’s something like the president committing murder or some other terrible criminal offense. While President Obama’s action is deplorable, it doesn’t violate any specific criminal statute. (And it’s not treason, because the Constitution defines treason as overtly working to help a nation with which America is at war. It’s a very narrow definition.)
There are those who reasonably interpret “high crimes and misdemeanors” to include acts of gross malfeasance in office. For example, if the president were to suddenly bomb Israel or Great Britain, committing such acts of war without congressional authorization could be impeachable offenses. In that sense, an impeachable offense is anything the U.S. House says it is; the House could impeach a president for wearing an ugly necktie.
But that’s part of the reason an impeached president must then receive a trial in the U.S. Senate, where it takes 67 votes to remove from office. Even if there were enough votes to impeach President Obama, there’s no chance of removing him.
That leaves only one remedy that can plausibly give the American people relief: they need to replace Barack Obama on Election Day.
As a lawyer who works in politics, my instinctive reaction to anything the executive branch does wrong is to think about how we can fix it in court or in Congress. I do not lightly come to the conclusion that any attempts through those two channels will be unavailing.
As frustrating as the lack of other options are, in one important sense it’s refreshing. It reminds us that in our constitutional democratic republic, the people are the ultimate sovereign. There are moments when we cannot look to either the legislative branch or the judicial branch to protect us when the executive branch seizes power denied to it by our Constitution, running roughshod over our liberty. There are times when even the structural constitutional safeguards of separation-of-powers and checks-and-balances break down.
In those moments, we, the American people must look to ourselves. During those times, we don’t look to anyone to take care of us, not even the other branches of our government. That is itself a manifestation of an entitlement mentality–the kneejerk reaction of, “Who’s going to take care of my problem for me?” At such times, we are reminded that We the People are in charge, and have the ultimate say, and We the People have a duty to act.
We the People exercise this say through the means we chose to write into our Constitution. For each of our federal elected leaders, we give them an exact time period in which they exercise their power. For the office of president, that term is four years. And on November 6 of this year, we decide whether to remove President Obama from office or to give him another four years.
President Obama’s shocking power grab–which I and a colleague predicted he would make in two books that we coauthored–also carries an ominous and profoundly disturbing warning. This president is willing to engage in such a brazen power play only months before he has to stand before us for reelection. Just imagine what he will do if he gets another term, knowing each day of those four years that he will never again have to answer for anything, to anyone.
Five days before the 2008 presidential election, Barack Obama proclaimed on television, “We are five days away from fundamentally transforming the United States of America.” The Constitution forbids any president such sweeping power to fundamentally transform our beloved nation. Now we see proof that he knows this, and so the way he is fulfilling his vow to fundamentally transform this nation is by violating his oath of office to “preserve, protect and defend the Constitution of the United States.”
For that reason alone, Americans must vote this November to replace this president.