Obama said in September that he intends to take unilateral action to give illegal aliens “some path” to “be legal.”
Although Article 1, Section 8 of the Constitution says: “Congress shall have power…to establish a uniform rule of naturalization,” House Democrats, including Lofgren, urged Obama to take "bold" executive action on immigration at a Thursday press conference on Capitol Hill hosted by Rep. Luis Gutierrez (D-IL).
However, following the press conference, Lofgren would not directly answer a question by CNSNews.com about where the president gets such authority in the Constitution.
She later acknowledged by e-mail that “The President’s authority, both statutory and constitutional, to take action to improve our immigration system does not confer any permanent legal status to undocumented immigrants.”
“Where specifically does the Constitution give the President the authority to unilaterally convert illegal aliens into legal residents of the United States?” CNSNews.com asked the California Democrat, who is also a member of the House Judiciary Committee.
“Your question is based in some lack of understanding of the statutes of the law. Read the Arizona case,” Lofgren replied, referring to the 2012 U.S. Supreme Court case, Arizona v. United States.
“I'm wondering only about the Constitution,” CNSNews.com reiterated.
“They talk about the Constitution where they note that the executive branch has broad authority to decide who to prosecute and who not to prosecute, and that is inherent in the prosecutorial function, whether you're a D[istrict] A[ttorney] in San Jose or whether you're President of the United States,” she explained.
"The second area where the president has authority is so-called parole authority, and that's specifically granted to him by the Immigration and Nationality Act that Congress has adopted."
“But could you point to the language in the Constitution...?” CNSNews.com repeated.
“Why don't you read, well, read the case and if you still have questions, call me back,” Lofgren answered.
The Arizona ruling does mention that "a principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all."
But the decision also invokes "the National Government’s constitutional power to 'establish an uniform Rule of Naturalization,' U. S. Const., Art. I, §8, cl. 4," which is listed in the U.S. Constitution as a power of Congress, not the Executive Branch.
"Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return," according to the high court’s Arizona decision.
Based on the above criteria, the Supreme Court concluded that "the dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities."
Although the justices ruled in the case that the Executive Branch can make discretionary decisions regarding aliens when it comes to international relations, they also note that the Constitution grants the power of naturalization to Congress, not the president.
CNSNews.com pointed this out in a subsequent e-mail to Rep. Lofgren and asked her once again: “Where in the Constitution of the United States, the document itself, is the President granted the authority to unilaterally grant amnesty?”
“Your question once again suggests a misunderstanding of constitutional law, ” Rep. Lofgren replied by e-mail. “The President’s authority, both statutory and constitutional, to take action to improve our immigration system does not confer any permanent legal status to undocumented immigrants, as your question implies.”
“Rather, any action the President may take will only serve as a temporary reprieve from deportation that can at any time be reversed by future Presidents, or superseded by law,” Lofgren concluded.
However Lofgren signed a letter to President Obama encouraging him to take “bold executive action” on amnesty based on his "clear and substantial" legal authority, and expressing her disappointment that he postponed doing so until after the mid-term elections.
“Just to clarify: Is your response that the Constitution does not give the President the authority to unilaterally convert illegal aliens into legal residents of the United States?” CNSNews.com asked in a follow-up email.
“Additionally I was wondering if your statement that 'any action the President may take will only serve as a temporary reprieve from deportation that can at any time be reversed by future Presidents, or superseded by law' means that after the president's action, these people would still be classified as illegal?” CNSNews.com inquired.
“I don’t believe there’s anything further to add to the record,” Peter Whippy, Rep. Lofgren’s communications director, responded to the above questions.