Here Comes Everybody

President Obama Delivers Statement On Immigration Reform

President Obama Delivers Statement On Immigration Reform

We will soon know if the U.S. Senate changes hands, but I’m not one of those waiting with bated breath. I had lunch with a prominent conservative columnist a while back. “It’ll be different in November,” he exulted. “We’ll take the Senate!” “And then what will happen?” I asked. “We’ll pass legislation and send it up to Obama,” he answered. “And then what will happen?” I asked.

My friend thought that the most arrogant and narcissistic President the country has ever seen would blanche before Mitch McConnell. Count me a skeptic. We have gridlock this year, and we’ll very likely have gridlock in 2015, whatever happens in November.

Oh, I know there’s the Senate’s advise and consent role, when it comes to judicial appointments. Conservatives like to pretend that that’s important. All it means is that, with divided government, we won’t see Justice Eric Holder. So we’ll see Justice Elena Kagan. Tell me what’s the difference.

The mystery, then, is why people care about Congress, and pour money into senatorial races, when we can expect the gridlock to continue. Is it that membership in the Senate is a trying ground for a presidential run? The other possibility is that Democrats hope for a repeat of 2008 in 2016, with Democrats in control of both ends of Pennsylvania Avenue. That still matters. When that happens, legislation does get passed, as it did in 2009 and 2010. Obamacare. Dodd-Frank. But the message of the last few years is that the presidential power to rule by decree can do almost the same thing as an act of Congress.

As if to underline the impuissance of Congress, President Obama is readying a plan to regularize millions of undocumented aliens, we are told. He’s done this before, when Congress refused to pass the Development, Relief, and Education for Alien Minors (DREAM) Act. This time we’re talking about millions more people. Remarkably, one hears he plans to give them green cards. If that happens, we’ll have arrived at an era of full presidential power, of the kind I described in The Once and Future King.

Could that happen? Just maybe. First, Obama might exercise his inherent prosecutorial discretion (called the Royal prerogative in Canada and Britain) not to deport them, and moreover to regularize them under a program that offers them a quasi-legal status. Some people would consider this illegal, even unconstitutional. I don’t buy that. I have a different definition of what’s legal, taken from John Austin: laws are commands of a sovereign, backed by force. Obama is effectively the sovereign, and he commands all the guns.

End of story. Unless perchance you harbor the fond hope that the fainéant John Roberts Supreme Court will discover limits to the political question doctrine and choose to intervene in a turf war between the executive and legislative branches. I don’t see much chance of that. Even John Boehner chose not to litigate when Obama thumbed his nose at Congress with his Deferred Action on Childhood Arrivals, after Congress refused to pass the DREAM Act. That was 1.8 million people. Now we’re talking five to 10 million people. But the principle is the same, and I wouldn’t expect a court that legitimized Obamacare to rise from its Merovingian supineness.

And who really could make a federal case of this? Not the Lockeans amongst you, for it was the author of the Second Treatise of Government who made the strongest case for the Royal prerogative, once his chap was safely on the throne.

Section 160. This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.

How one sets limits on that is not obvious. Locke thought that the King must be trusted to be faithful in small things. And one has it on authority that he that is faithful in that which is least, is faithful also in that which is greater. Not knowing how to distinguish the two cases, I am fairly confident that John Roberts wouldn’t either. Locke thought about that, and had an answer for it too.

Section 168. The old question will be asked in this matter of prerogative, But who shall be judge when this power is made a right use of? I answer: between an executive power in being, with such a prerogative, and a legislative that depends upon his will for their convening, there can be no judge on earth; as there can be none between the legislative and the people, should either the executive, or the legislative, when they have got the power in their hands, design, or go about to enslave or destroy them. The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven.

Sounds like John Roberts, doesn’t it? All we have is the Appeal to Heaven, thought Locke. Remember the Appeal to Heaven flag? It was hoisted by the American navy in 1775, at the command of George Washington. But that’s too extreme. Or as John Kerry might put it, that’s so 18th century. We don’t do revolutions any more.

Mind you, the de facto amnesty would upset a great many people, Republicans especially. With the kind of electorate America had in 1960 there wouldn’t have been a President Obama. There’d have been a President Romney. Heavens, there’d have been a President McCain. Since 1950, however, we’ve seen the arrival of a motley band of ill-educated people, without the least allegiance to or even knowledge of America’s Founding principles, a cohort of people whose appearance in America was so aptly called the “barbarian invasions” by filmmaker Denys Arcand.

I am referring of course to the millenials. But we immigrants are nothing to write home about either, and the undocumented aliens would tip the scales for many generations towards one-party rule, were they made permanent residents.

So can the President unilaterally put millions of undocumented aliens on a path to citizenship? Not without a struggle. Under the Immigration Act, the number of refugees or asylees who can be admitted each year is not capped, unlike other categories of immigrants. Section 207 of the Act does contemplate a limit of 50,000 refugees a year, but then provides that the cap can be lifted if the President determines that admitting a greater number of refugees is justified “by humanitarian concerns or is otherwise in the national interest.”

Does Congress get a say in this? Not really. The Secretary of Homeland Security would be required to consult with Congress, but the legislative branch couldn’t prevent a mass admission of refugees without amending the aforementioned law—which in a gridlocked Washington wouldn’t happen. And what does admission as a refugee or asylee mean? Permanent resident status (the green card) and a path to citizenship and voting rights.

So the question you have to ask is, would Obama think it “in the national interest” under the Immigration Act to admit millions of likely Democratic voters? As it happens, he’s already told us. “I want to be very clear,” he said. “I’m going to do what I can [on immigration reform] . . . because it’s the right thing to do for the country.”

Nevertheless, the President’s discretion is limited by the definition of “refugee” under the Act. To be a refugee, one needs to show “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Suppose, however, that Obama announces that America’s undocumented aliens would be persecuted were they to return home. The President might, for example, ask immigration officials to accept as conclusive evidence of anticipated persecution an affidavit which refers to specific facts evidencing such a fear. The applicant for asylum has the burden of proving persecution, but under section 208(b), an administrative law judge might base his decision solely upon such an affidavit.

This wouldn’t be an easy matter to do. It would, at a minimum, require the appointment of a very large number of political allies as administrative law judges; but then, in July 11 of this year, we got a heads up that this might happen in a little-noticed proposal for the appointment of temporary administrative law judges to deal with immigration matters.

It’s all far-fetched, admittedly. But then we’ve learned to accept things we very recently thought far-fetched.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 28, 2014 at 11:15:25 am

Forget what Obama needs, he'll do what he wants. "Discretion", "limited"? please. It's going to be an unpleasant last two years.

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john trainor
on October 28, 2014 at 11:49:21 am

Mr. Jefferson did not think an *appeal to heaven* was too extreme. Indeed, he thought such an appeal might be needed every second generation or so!

As for prerogative, was not the purpose of the American structure the diminution of such prerogative? Sadly, we have come up quite short in this regard in recent decades; yet one finds it odd that a writer who previously has lauded the "benefits" of Parliamentary governance, in which as some fabled British jurist opined that the Parliament has no limit whatsoever on its ability to pass legislation, is presently bemoaning the exercise of executive prerogative. Would not this be amplified under parliamentary governance? After all, the electoral victors control the *entire* governing apparatus. If this does not conduce to the exercise of (joint) prerogative, one wonders what would?

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Image of Colonel Joseph Reed
Colonel Joseph Reed
on October 28, 2014 at 16:23:47 pm

So far as the prerogative goes, there is little difference between parliamentary and presidential regimes. The difference, rather, is the way in which the separation of powers serves to concentrate the plenitude of political power in the American executive. That's really not arguable, is it?

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Image of Frank Buckley
Frank Buckley
on October 28, 2014 at 18:32:55 pm

[…] well employed–e.g., moving rocks from one silly pile to another. So it seems when reading today’s Law and Liberty blog by F.H. Buckley. Caution: reading this excellent content might initially tempt a reader to sigh with the hope that […]

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Image of “Federalist Checks on Presidential Kingship,” By Peter Haworth | Nomocracy In Politics
“Federalist Checks on Presidential Kingship,” By Peter Haworth | Nomocracy In Politics
on October 28, 2014 at 19:40:23 pm

".. is the way in which the separation of powers serves to concentrate the plenitude of political power in the American executive. That’s really not arguable, is it?"

Perhaps, it is. While Executive dominance is readily observable in the US and while it is seemingly plausible that the *separation of powers* is the cause of (or, at minimum, serves) this enhanced Executive dominance, it is a rather simplistic explanation of our current plight. A vast host of factors have contributed to this issue - one of which is discussed in the following link.

Rather than attributing the rise of Executive prerogative to *separation of powers*, it may be more accurate to argue that the *separation of powers* is simply a mechanism, abused beyond recognition, that has been skillfully used by those who seek to implement the "modernity project." This includes the Legislature; in fact, an argument can be made that the Legislature shares a greater burden than the Executive because it *divested* itself of its powers and allows (encourages) the Executive to assume far greater authority than is otherwise prescribed. And yet, is this not what is done in a Parliamentary system wherein the victorious Party simply implements its agenda.
At best, one may argue that the separation of powers FAILED to do what it purported to do - limit prerogative; it did not engender it. For that one needs a healthy does of venality, cowardice and greed.

Anyway, here is link over at NRO PomoCon.


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Colonel Jos. Reed
on October 30, 2014 at 15:42:09 pm

I would suggest that the way the separation of powers concentrates power in the American executive is not through the fact of separate power, but primarily through a flaw in the design of the separation. The American separation of powers includes a provision that prevents objective moderation of conflicts between the Constitution and the three branches.

The Supreme Court was the intended vehicle of such moderation. But look at it a little closer. The bench is appointed by the Executive and approved by the Legislature. Is it not easy to see that the executives and legislators will tend to appoint and approve justices who grant them greater and greater power? And over time must such a construction lead to an ever increasing centralization of power in those branches?

The inevitable result of such a construction must be the growth and centralization of power of the Executive and the Legislature. Because the Executive takes the initiating role of putting up potential justices for approval the Executive has the dominant role in thumbing the scales, over the role of the Legislature who can only react to the Executive's proposals. Add to the Executive's dominant role in justice selection the various other mechanisms of influence you discussed in The Once and Future King, and you have a recipe for ongoing centralization of power in the Executive.

I would say that where you and I differ is that you seem to all but write off the distribution of powers completely, I suggest that the system is repairable. The first repair needed would be the change to a neutral moderation of the use of Constitutional powers. (And second, bring an end to the duopoly of political power in the two political parties.)

In your book you analyzed and discussed the strong correlation between having a British political heritage and the individual liberties of the peoples of nations. I wonder if nations such as Canada as a dominion of Britain enjoys some advantage in personal liberty by way of having noncentralized and relatively neutral moderation in their political affairs provided by their relationship with Britain. While I do not see myself every voluntarily bowing down to royalty, I do see advantage in having a neutral moderation of political affairs.

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Scott Amorian
on October 30, 2014 at 19:35:10 pm


good to see you back!

Good comments as well. I have argued that it is not *separation of powers: per se, but rather the use (abuse?) to which it has been put. I think you are correct with respect to a neutral moderator; I just don't see it happening and the likelihood of it happening is complicated by the overall *statist* approach of both parties. Just wish that it were not so!

Also, I don't agree with Buckley's contention that Canadians (and others) enjoy greater liberty than do Americans. His data is suspect and predicated upon numerous unsupported assumptions. Canadians seem to have fallen prey to the general disease of the West - malaise and self loathing relativism. They are, perhaps, even more *PC* than we are and their behavior with respect to free speech, freedom of the press is quite discouraging - not to mention their pandering to Muslim sensibilities.

Regrettably, what seems to pass for the *moderating function* today is elitist PC opinion. This is not to say that such a moderator could not be conceived and made part of the political structure - anything would be better than a PC moderator!

take care


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Image of gabe
on November 07, 2014 at 17:26:11 pm

[…] a clear de facto legislative quality that the Constitution gives exclusively to Congress? From what F.H. Buckley suggests Obama’s action will likely be the […]

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Image of “Andrew Johnson Redux? On a Similar Showdown Between Congress and President Obama,” By Peter Daniel Haworth | Nomocracy In Politics
“Andrew Johnson Redux? On a Similar Showdown Between Congress and President Obama,” By Peter Daniel Haworth | Nomocracy In Politics
on November 20, 2014 at 07:32:15 am

[…] of usurping Congress’s Article I legislative powers with a few strokes of his powerful pen. F.H. Buckley, Jonathan Turley, and Kevin Gutzman have all argued in their separate ways how this event could […]

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Image of “Why Congress, Not Obama’s Illegality on Immigration, Will Likely Kill the Madisonian System,” By Peter Haworth | Nomocracy In Politics
“Why Congress, Not Obama’s Illegality on Immigration, Will Likely Kill the Madisonian System,” By Peter Haworth | Nomocracy In Politics

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.