Republicans are uniformly disappointed in the president's actions but deeply divided on what their reaction should be. Democrats are also divided, if not on the merits of immigration reform then at least on whether this is the right approach.
The U.S. Constitution clearly gives Congress responsibility for making laws and the President responsibility for their implementation.
"All legislative Powers herein granted shall be vested in a Congress..."
"...he shall take Care that the Laws be faithfully executed..."
Those on the left are pointing out that other presidents have issued more executive orders than Barack Obama. They further point out that recent presidents have also issued executive orders regarding immigration.
Executive orders are, broadly speaking, a lawful and necessary use of presidential power. Sometimes they are necessary in order to 'take care that the laws are faithfully executed'.
Some folks on the right this morning are calling this an illegal and unconstitutional act, perhaps worthy of impeachment. Not surprisingly Ted Cruz has issued statements to that effect and has called for Republicans to fight vigorously against this action by all means possible.
Some people are spending time debating the merits of immigration reform or talking about how many people this administration has deported. They talk about the failure of Congress to act. None of that seems relevant to me.
I have said that although I support immigration reform I am sad and angry that the president has taken these actions. What he is doing is wrong and violates our constitution.
What is he doing? He is suspending deportations for some 5 million people who came here illegally and he says he will issue them work visas and social security cards.
The law says that people who are not in this country legally should be deported.
I said I think the president is violating the law as written but more to the point he is violating not only the intent of the lawmakers but also the will of the people. His actions are counter to the results of the recent election.
The president and his supporters claim they are listening not just to the people who voted but to those that did not vote. I am not sure how that works. Democrats and people who formerly voted for the president stayed home in large part. Staying home sends a message, one of disapproval.
I am aware that the president will not be granting anyone citizenship. I am aware that executive orders can be reversed by the next president. I suspect that Barack Obama will push the envelope as far as he possibly can without explicitly violating laws that Congress had passed, or at least leaving a little room for interpretation.
We are aware that he himself stated over and over that he cannot legally do what he is now doing. But that was before he asked his counsel to look for any wiggle room and also before the last election made him a complete lame duck.
In the midst of this discussion I was asked a very interesting question.
"Let's assume, for the sake of argument, that the President's actions do not contravene the text of any particular immigration statute, but they do contravene the "intent" of the Congress that passed those statutes.
On the Supreme Court, Justice Scalia advocates for textualism as the correct way to interpret statutes. Wikipedia provides a good quote from Scalia that summarizes his views: "[it] is the law that governs, not the intent of the lawgiver." The conservative wing of the court generally agrees with him.
Do you believe that the Executive branch should use different rules of statutory interpretation than the courts? Or do you simply disagree with Justice Scalia about the right way to read and interpret statutes?"
That is a great question.
Justice Scalia has a point in that legislators should be very careful about what specific words they use when writing legislation. The actual text must, in the end, be the guide in interpreting the meaning of any law. It is not the only thing to consider, but it must be the basis and the starting point.
The laws passed by Congress are always a compromise between competing ideas. The House and Senate usually pass separate bills which must be reconciled before reaching their final form.
In either chamber there must be debate and amendment and compromise just to get a bill that will pass. Before that the bill must make it out of committee which usually means it needs bipartisan approval.
Even among Republicans there is not complete agreement on anything. Ted Cruz and John McCain and Mitch McConnell do not hold the same views. Neither do all of my Republican friends debating the issues.
When a bill passes by 53-47 in the senate, and it was a compromise of various ideas in the first place, what was the intent? For laws that have been on the books for some time do we consider the intent of the original congress or the consensus of the current congress?
Even a single legislator who votes for legislation may represent a district where 60% of his constituents approve and 40% disapprove.
Polls can tell us something about the mindset of the population but they are often split pretty evenly. Even the most recent election, which heavily favored Republican candidates, had a great many people voting for losing Democrats and an even greater number of people simply not voting at all.
So, generally speaking, Scalia is right. The words that end up on the page at the end of a long and messy process, filled with politics and compromise, must be what matters.
This is the process we have chosen, because the founders recognized that the citizens would never be completely of one mind. We have a bicameral bipartisan representative democracy functioning in a constitutional republic.
It isn't perfect, but it has served us pretty well.
And now back to Barack Obama and his executive orders. The law does not provide for the president to suspend deportations and hand out Social Security cards. That was not the intent of a majority of the people who wrote the bill. It is not the intent of the current Congress or the newly elected Congress. It is not the will of the majority of Americans as reflected in the polls.
Our Constitution was designed for these types of messy political issues to be worked out by the people's representatives in the grueling process involved in getting legislation through Congress. There is no doubt that this was the intent of those who wrote the Constitution and founded our Republic.
If a president's signs an executive order that clearly has the support of a majority of Americans and a majority of Congress and aligns with the letter and intent of the law there is no problem.
His actions fail every single test. This is not how it is supposed to be done. This is wrong, and the president knows it. He said so over and over.
Even if he somehow technically finds a way to stay within statutes, he has violated our constitution. If not the letter, certainly the intent.
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