Cry havoc and let slip the Holocaust. Illegal aliens, Democrats, La Raza and the
ACLU are screaming about the branding of North Carolina driver’s licenses
designated to those who’ve been warranted deferment status by an
unconstitutional decree by our lord and master: Barack Hussein
Obama.
Listen to this new entitlement class howl. Here are some examples of the righteous indignation
of a non-citizen living in the United States:
Across the top of the new license is a pink strip. In the center,
red capital letters say, “NO LAWFUL STATUS.”
On the side, another set of red capital letters say, “LIMITED
TERM,” referring to the license holder’s two-year reprieve from deportation.
According to Moises Serrano, a Yadkin County immigrant activist
who has applied for deferred action, the design is similar to the Star of David
that Jews were forced to wear in Germany under the Nazi regime.
“This singles me out,” Serrano said. “Imagine trying to get on a
flight at the airport, and you have to use this license. It’s an invasion of my
privacy. I am undocumented and unashamed, but I say that on my terms.”Do you get that? Moises Serrano is undocumented and unashamed, and we will accept his terms! We’re a bunch of Nazis for valuing our citizenship; and relegating this poor supplicant as the Jew in the punch bowl. Wow, we are just a bunch of imperialist Americans infringing on his world-citizenship status. He has a human right to squat wherever he pleases; except of course to go back to his native country. How dare we Americans “invade his privacy”?
Of course, the ACLU and 100 law professors have stated that the Obama decree is legal. But no one should trust this so-called civil rights organization and today’s academia when it comes to our Constitution, and it seems that North Carolina House Republicans have cast a suspect eye on such protestations, with good reason. Article One; Section Eight gives Congress sole authority when it comes to rules of naturalization. Proponents for an authoritarian government argue the following:
Nearly 100 law professors from top universities nationwide,
including Wake Forest University, signed a letter last summer advising Obama
that the executive branch has the authority to defer deportation of young
immigrants -- just weeks before the president announced plans to do so.
“General authority for deferred action exists under the Immigration
and Nationality Act ... which grants the Secretary of Homeland Security the
authority to enforce the immigration laws,” the letter saids. “Though no
statutes or regulations delineate deferred action in specific terms, the U.S.
Supreme Court has made clear that decisions to initiate or terminate
enforcement proceedings fall squarely within the authority of the
Executive."But they refused to acknowledge the limitations the Executive has when it comes to deferments. The Volokh Conspiracy blog gave the best explanation:
There are at least a couple ways in which the Executive Branch has afforded groups of aliens blanket relief from deportation. One is Temporary Protected Status, which allows the Secretary of Homeland Security to “designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.” That said, I’m not sure TPS serves as that good of a precedent for the recently announced program, because TPS is conducted under express congressional authorization in the form of 8 U.S.C. § 1254a. There isn’t comparable express authorization for the recently announced program; indeed, the Administration sought such authorization and Congress demurred.
A better precedent for the Executive Branch to act unilaterally is Deferred Enforced Departure. As explained on the CIS website), DED is a “temporary, discretionary, administrative stay of removal granted to aliens from designated countries.”
Unlike TPS, DED emanates from the President’s constitutional powers to conduct foreign relations and has no statutory basis. (Because DED is not a statutory provision under the Immigration and Nationality Act it is not considered an immigration status.) The President designates DED for nationals of a particular country through either an Executive Order or a Presidential Memorandum.
As some proponents of the President’s action are quick to note, President Bush issued a Memorandum to Secretary Chertoff on September 12, 2007, granting deferred enforced departure to certain Liberians for a period of 18 months. See 43 Weekly Comp. Pres. Documents 1203 (Sept. 12, 2007). (While at OLC, I reviewed that Memorandum.)
But it’s not clear that Deferred Enforced Departure is a close fit as a precedent either, because it traditionally has been used only temporarily to prevent aliens from having to return to areas suffering from disturbances. It has been employed as an exercise of the President’s power to conduct the foreign relations of the United States, and it’s not self-evident that same power would permit the President to indefinitely suspend deportation for a much larger group of aliens who don’t confront the same circumstances in their countries of citizenship. That starts to sound more like Congress’s power “[t]o establish an uniform Rule of Naturalization,” U.S. Const. art I, § 8 cl.4. Indeed, this purportedly leaked DHS draft memo discussing the issue way back in February 2010 recognizes that this sort of program “would represent use of deferred action on a scale far beyond its limited class-based uses in the past.” (Careful readers will note the facial reason to doubt the memo’s authenticity—it purports to be a DHS document, and yet it’s time-stamped 5pm on a Friday.*)
This wouldn’t be the first time Obama has used unconstitutional
means for political expediency.
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