Commentary

Executive Shamnesty: Lawless or Lawbreaker?

Richard Kelsey
By Richard Kelsey | November 11, 2014 | 2:58 PM EST

Neither the Constitution nor any federal law permits the President to grant amnesty to illegal aliens.  Moreover, the President has no legal authority to direct his administrative state to defer, suspend or stop deportations.  This abuse of power by the President in his DACA decree is one reason why his opponents refer to him as a “lawless” President.  Indeed, even left-leaning Constitutional scholars such as Jonathan Turley have suggested the president is provoking a Constitutional crisis with his actions.  Yet, this President has promised America more illegal action before the year’s end on what is being called “executive amnesty.”  Just hours after his post-election presser, where he pledged to work with Republicans, the President reaffirmed he would take illegal action on amnesty.

Executive amnesty is a sham.  It is both an improper extension of executive power and a crime.  The President will direct immigration officials to use prosecutorial discretion on an entire class of illegal immigrants.  In so doing, deportation proceedings will be halted in mass.  Immigrants will not obtain legal status here, but they will not be subject to removal.  In essence, they will receive de facto amnesty.  The President has no legal authority to do this.  His prior de facto amnesty also directed federal authorities to use prosecutorial discretion not to prosecute certain minors brought here illegally.  Again, that directive was without legal foundation.  Whatever discretion a prosecutor may have in a deportation proceeding is limited.  Every single case must turn on the individual facts.  In short, after examining the facts of one particular case, a prosecutor may find that while an immigrant is here illegally, deportation may not be appropriate because of other circumstances the law recognizes, such as political refugee status.  Neither the President nor immigration authorities have the right to drop deportation hearings unless the reason for illegal presence in our country is one contemplated and set out by the law.  When Mr. Obama directed his DACA decree, he essentially re-wrote the law, required that it be ignored, and mandated that no case-by-case analysis be conducted.  This was not merely lawless, it was law-breaking.

Executive amnesty on DACA produced a massive inflow of illegal alien minors.  After averaging roughly 5-7 thousand unaccompanied minors a year, we saw those numbers jump to thirty-thousand and then nearly seventy-thousand in the two years after the illegal DACA decree.  In reality, not only did this President illegally grant de facto amnesty to minors here illegally, he encouraged nearly 100 thousand illegal aliens to storm our borders through his very public act.  The President did not merely exceed his legal authority as a chief executive, he committed a crime.  While this President can point to no legitimate basis for his amnesty actions, those of us who know and read the law can point clearly to the statute he violated.

The United States Code provides under 8 U.S.C. 1324(A)(1)(a)(iv) that it is a felony for anyone to “induce” or “encourage” an illegal alien “to come to, enter, or reside in the United States.”  Every sentient human being or credible prosecutor can look at this law and determine that at a minimum, this President must be investigated for its violation.  It is one thing to try to expand the powers of the Presidency, as many Presidents have.  It is quite another to knowingly flaunt federal criminal law and engage in activity that is squarely illegal.  The President, who is fond of telling us he is a Constitutional Scholar, ought to know that his actions are both improper as a matter of executive power and illegal as a matter of federal law.

The only discussion this country ought to be having on executive amnesty is how it will be used in the prosecution of the President in his criminal trial.  The difference between our republic and the countries ruled by dictators and despots is that we have always believed that no man, no matter his party or position, is above the law.  Whatever legitimate public policy questions may need to be addressed with respect to immigration reform, they have no bearing on the actions taken by this President.  His actions are outside the law; they are, if not criminal, a shamnesty.

Richard Kelsey is an Assistant Dean at George Mason Law School.  A former Virginia state court law clerk and commercial litigator, Dean Kelsey was also the CEO of a technology company.  He teaches legal writing and pre-trial practice.  He is a regular commentator on legal and political issues in print, and on radio and TV. His Twitter handle is @richkelsey.


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