President can't rule by fiat

President can't rule by fiat

If federal law says one thing, the president doesn't have the authority to do the opposite.

President Obama said more than 20 times that he did not have the legal authority to legalize by executive order the presence of millions of people who are illegally in the country.

Of course, he said that right up until doing just that shortly after the November election. But it's important to bear in mind that Obama acknowledged his lack of legal authority because a federal judge now has come to the same conclusion.

U.S. District Judge Andrew Hanen, presiding over a challenge to Obama's action by 26 state attorneys general, has blocked Obama's executive actions halting deportations of illegal immigrants.

Hanen did not issue a formal ruling striking down Obama's executive order. Instead, he ordered it suspended because he said the legal arguments by states opposing it will likely prevail.

The judge's rationale will surprise no one who has paid attention to this controversy.

Judge Hanen said Obama has no legal authority to "give 4.3 million removable aliens what the U.S. Department of Homeland Security itself labels as a 'legal presence.'" The judge noted that "in fact the law mandates that these illegally-present individuals be removed" from the country by returning them to their homelands.

In another statement explaining the obvious, the judge said that if Obama wants to pursue this kind of quasi-amnesty program he needs to persuade Congress to grant him statutory authority to do so.

The White House vowed an immediate appeal of Hanen's ruling, characterizing Obama's decision to unilaterally change the law as "prosecutorial discretion" that allows the executive to establish its own law enforcement priorities.

While White House press secretary Josh Earnest defended the president's action as entirely appropriate, congressional Republicans were quick to say, "I told you so."

"This ruling underscores what the president has already acknowledged publicly 22 times: He doesn't have the authority," said Senate Majority Leader Mitch McConnell.

The president and Congress have long wrestled with what to do about the estimated 11 million illegal immigrants present in this country.

Republicans have suggested they're amenable to allow those here illegally to stay if the country's borders are first secured. Many Democrats, led by Chicago U.S. Rep. Luis Gutierrez, have pressed for amnesty and open borders. To say there is a gulf between those positions is to put it mildly.

Obama is closer to Gutierrez's position, and that resolve is what sparked his decision to simply legalize the presence of nearly half of those here illegally.

It remains to be seen what the higher courts will do with Judge Hanen's decision. But those who first raised constitutional questions about Obama's unilateral action can take satisfaction that the first of what will be a series of judicial decisions on this issue went their way.

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Sid Saltfork wrote on February 19, 2015 at 1:02 pm

Yes, a Texas judge appointed during the Bush administration made the ruling.  In Congress, the GOP has refused funding for Homeland Security unless the President drops his executive order which the past five presidents have used.  They have sat on their hands all this time do nothing, but complain.  If they want something done, they should pass a bill.  

Realistically, how is the government going to round up 5 to 11 million non-legal aliens and deport them?  Homeland Security protects the borders, airports, and many other things in order to protect this country from terrorism.  Why hold up funding for protecting American lives over an unrealistic deportation desire?  The ultra-conservatives ensure that the GOP will remain a party appealing to the same old base: the Rich, and the ignorant.  As the Euro-American population shrinks so does the GOP.  That leaves only the Koch brothers, and others of their kind to influence voters via monied propaganda. 

townie1 wrote on February 20, 2015 at 11:02 am

So Republican presidents can grant amnesty but not Obama? Hmmm.  Obama isn't legalizing that all immigrant stay, but rather providing a way that some of them can obtain citizenship. Most people don't have a problem with this. The republican party needs to start listening to what people really want. And given Obama is a constitutional law professor and attorney, I think he knows what he is doing here.