Obama, Immigration and the Rule of Law

By David Limbaugh Published on February 27, 2015

Honestly, are any of my Democratic friends even slightly bothered by President Obama’s habitual and brazen lawlessness and what that could mean for our liberties?

Does it bother them that he implemented two new administration programs to halt deportations and allow work permits for up to 5 million immigrants living illegally in the United States after clearly admitting he didn’t have the constitutional authority to do so?

Does it bother them that after having done so, despite his insincere promise, he has been openly defiant about the decision U.S. District Judge Andrew Hanen made in favor of the states trying to block Obama’s unlawful act? Obama said: “This is just one federal judge. We have appealed it very aggressively. . . . I’m using all of the legal power vested in me in order to solve this problem.” Me, me, me.

Does it bother them that his administration has begun to refer to these immigrants as “Americans-in-waiting” — as if his iron will controls, irrespective of the Constitution, the law and the prerogative of the coequal legislative branch?

Does it bother them that, like a Third World despot tyrannizing his subjects, he said in a town hall forum in Miami that there will be consequences for any federal agents who ignore his new policies? Obama said, “If somebody’s working for (U.S. Immigration and Customs Enforcement) . . . and they don’t follow the policy, there are going to be consequences to it.”

Are such threatened consequences, by the way, really the business of a chief executive, even if he is acting lawfully? Isn’t his indignation a bit tough to take, given his own propensity not to follow the law? Does anyone ever make him face consequences for not just ignoring but violating laws?

As others have pointed out, Obama’s position on this issue, despite being legally wrong, is inconsistent. His entire rationale is that these actions are within his executive power because it is a matter of prioritizing immigration enforcement efforts with limited congressional funding. Yet he will have zero tolerance for immigration officials who attempt to exercise their discretion in not enforcing his “orders.”

Also, Obama’s characterization of his executive action as a matter of prosecutorial discretion is disingenuous. Judge Hanen clearly held that Obama’s program of Deferred Action for Parents of Americans and Lawful Permanent Residents is “actually affirmative action rather than inaction” because the program grants “legal presence to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.”

It is absurd for Obama to claim that his action is within his prosecutorial discretion when it not only involves a decision not to enforce a law or ruling but also grants new rights, as Hanen noted, and is in contravention of existing laws. As Texas Attorney General Ken Paxton has argued, “the president, on his own, has issued a separate action in opposition to current law.” This action, says Paxton, will cost his state hundreds of millions of dollars for education, health care and public safety.

Do you understand the argument? Obama isn’t just turning his back on deportment. He is granting substantive rights to immigrants that are not his to grant, foisting the cost of those new rights onto the states without their consent — and doing so in violation of existing laws.

The administration’s duplicity is readily apparent when you listen to the weasel words of Sarah Saldana, director of ICE, in the emergency motion filed by the Obama administration to stay Hanen’s ruling. Saldana said, “Preventing the deferred action policies from going into effect interferes with the Federal Government’s comprehensive strategy for enforcing our immigration laws.”

Do those words, on their face, make sense? How does preventing Obama’s newly granted affirmative privileges to these immigrants from taking effect interfere with the government’s strategy for enforcing its immigration laws? Isn’t it more accurate and honest to say that it interferes with Obama’s attempt not to enforce those laws and to grant affirmative rights to immigrants that Obama decidedly has no authority to grant as president?

An action does not become something it is not just because government officials describe or denominate it as such. Otherwise, the Affordable Care Act would not be raising health care costs for millions of American families, and Obama’s scheme to commandeer the Internet wouldn’t be called “net neutrality.” Obama’s illegal immigration actions are not within his executive authority merely because he depicts them as within his prosecutorial discretion.

Obama’s arrogance may cost him this time, as he has gone way too far, even for him, by flagrantly violating the separation of powers and exceeding his executive authority in granting new rights to immigrants who are here illegally, providing no notice to the states of his action to allow for public feedback and saddling the states with enormous financial burdens.


David Limbaugh is a writer, author and attorney. His latest book is Jesus on Trial: A Lawyer Affirms the Truth of the Gospel. Follow him on Twitter @davidlimbaugh and his website at www.davidlimbaugh.com.


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