World Affairs Brief, November 21, 2014 Commentary and Insights on a Troubled World.

Copyright Joel Skousen. Partial quotations with attribution permitted. Cite source as Joel Skousen’s World Affairs Brief (http://www.worldaffairsbrief.com).

OBAMA’S EXECUTIVE AMNESTY

Obama has given de facto amnesty to millions of illegal aliens, a patently illegal and unconstitutional action and none of the officials in charge of our constitutional checks and balances have the will to stop it. This is proof that the Constitution is essentially dead. Senate Democrats have the votes to block any impeachment attempt now and liberal Republicans will stop it even when the GOP has the majority in the Senate next year. This week, I’ll discuss why none of the other tactics available to Republicans will work and why the GOP leadership is likely to sabotage the entire showdown as they have in the past. I’ll also take you through the murky provisions of this amnesty to demonstrate why it won’t be limited to the claimed 5 million illegals.

As Patrick Buchanan wrote today,

The political, psychological and moral effects of Obama’s action will be dramatic. Sheriffs, border patrol, and immigration authorities, who have put their lives on the line to secure our broken borders, have been made to look like fools. Resentment and cynicism over Obama’s action will be deeply corrosive to all law enforcement.

Businessmen who obeyed the law and refused to hire illegals, hiring Americans and legal immigrants instead, and following U.S. and state law on taxes, wages and withholding, also look like fools today… Immigrants who waited in line for years to come to America, and those waiting still, have egg on their faces. Why, they are saying to themselves, were we so stupid as to obey U.S. laws, when it is the border-jumpers who are now on the way to residency and citizenship?

First, let’s look at the slick way in which this amnesty is being presented, keeping in mind the deceptive and hidden features of the Obamacare legislation that turned out to be much worse than anyone imagined when it was rolled out (without anyone having access to the final language). I’ll comment on the NY Times coverage:

Up to four million undocumented immigrants who have lived in the United States for at least five years can apply for a program that protects them from deportation and allows those with no criminal record to work legally in the country. [This language makes it appear as if this is strictly limited in numbers but it is not. These numbers are provided by the administration and they will certainly be understated for making it more palatable. Moreover, how can anyone know how long ago an illegal crept across the border? Anyone here illegally can claim they qualify unless caught and carefully processed as they came across the border (which most are not).]

An additional one million people will get protection from deportation through other parts of the president’s plan to overhaul the nation’s immigration enforcement system, including the expansion of an existing program for “Dreamers,” young immigrants who came to the United States as children. There will no longer be a limit on the age of the people who qualify. [Notice that the Dream Act program was sold as limited only to the young. What’s to keep the current executive amnesty from broadening its scope by presidential edict? Nothing.]

But farm workers will not receive specific protection from deportation, nor will the Dreamers’ parents. And none of the five million immigrants over all who will be given new legal protections will get government subsidies for health care under the Affordable Care Act. [These are two bones thrown to the opposition to make it appear as if the administration isn’t giving away the entire farm at once. But there’s nothing to stop the administration from offering health care subsidies later on in response to a manufactured “public outcry” from illegal advocates.]

Govs. Scott Walker of Wisconsin and Rick Perry of Texas threatened possible legal action over President Obama’s pending executive action on immigration. [Sadly, the federal courts have never sided with states’ rights on these issues—they have always been overturned.]

Administration officials have said the president’s actions were designed to be “legally unassailable,” [laughable claim] which activists said led the White House to make some tough choices. Farm workers, for example, will not be singled out for protections because of concerns that it was difficult to justify legally treating them differently from undocumented workers in other jobs, like hotel clerks, day laborers and construction workers. [This is a red herring (an irrelevant argument meant to distract from the real issue). What the deviant writers of this bill are saying is that “we tried to be selective and protect only farm workers, but since that would be discriminatory, we’ll have be non-discriminatory and give amnesty to everyone (which is what we were looking to do in the first place!). Slick.]

The White House decision to deny health benefits also underscores how far the president’s expected actions will fall short of providing the kind of full membership in American society that activists have spent decades fighting for. [The wordage of the NY Times “full membership” in society, is clearly lobbying for not just executive amnesty but full citizenship (which according to any good socialist, includes full welfare benefits too).] The immigrants covered by Mr. Obama’s actions are also unlikely [a word with plenty of wiggle room] to receive public benefits like food stamps, Medicaid coverage or other need-based federal programs offered to citizens and some legal residents.

[Now an admission of the tactical wordage] But the restriction reflects the political sensitivities involved when two of the most contentious issues in Washington, health care and immigration, collide. It also suggests that the White House has decided not to risk angering conservative lawmakers who have long opposed providing government health care to illegal immigrants and who fought to deny immigrants coverage under the Affordable Care Act. [But this is a lie. Illegals do get coverage under ACA: “Obamacare will provide insurance to all non-U.S. residents, even if they … for the required five years and (b) earn at or below the poverty line.”]

[…]

This is bad legal reasoning: temporary reprieve from deportation is legally very different from a permanent reprieve, which is not authorized by law. Administration legal defenders are claiming that Obama is simply doing a extended reprieve that is not permanent:

“The grant of deferred action in this case will remain in place for three years, is subject to renewal, and can be terminated at any time at the discretion of the Department of Homeland Security. [Slate Magazine]

Deferred deportation would qualify as temporary, but the granting of green cards puts it into the path to citizenship and “lawful status” which Obama does not have authority to do. I’ll wager virtually all will be automatically renewed—making the administration’s temporary claims a lie.

Senator Jeff Sessions, the Alabama Republican who has vehemently opposed giving benefits to undocumented immigrants, disagreed with that assessment. “It is plain that President Obama has no authority to grant lawful status to those declared unlawful by the duly passed laws of the United States… Nor does the president have any authority to declare such individuals eligible to receive health benefits that have been restricted to lawful residents.” [Absolutely true, and this direct overturning of legislative law is the basis for impeachment.]

Potential Republican Remedies:

1) Impeachment: Sadly, the language authorizing impeachment in the constitution is woefully inadequate to address outright constitutional violations of the oath of office. The specific language refers only to “high crimes and misdemeanors,” and says nothing directly about violating the separation of powers that is the key to distribution of power under the constitution.

Most legal opinions about impeachment have involved judges that were involved in corruption or criminal activity, or moral conduct bringing the office into disrepute. Only in the case of the botched impeachment of President Bill Clinton did the writers of the articles of impeachment directly attack him for violating his oath: According to Congressional Research Service overview of impeachment law,

In particular, the articles of impeachment stated that, [i]n his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed,” had willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice” by making false statements to a federal grand jury regarding an extramarital affair…”

This was a tenuous stretch to connect the deceptive statements he made under oath to his duty to defend and protect the Constitution. According to David Schippers, the prosecutor, the Republican leadership sabotaged the much stronger articles (among them one related to treason wherein Clinton was guilty of secretly authorizing military technology transfers to Red China) in favor of the moral peccadilloes which, when brushed aside, made it much less likely any president would be impeached again.

My point is that no president has been brought up for impeachment for the most important impeachable offense—acting in violation of constitutional authority and limitations (even though that isn’t mentioned in the constitution, it is clearly implied by the oath of office). Thus, other than the mention in the Clinton articles of impeachment there has been no legal precedent establishing a direct usurpation of authority by the president as an impeachable offense. For this reason alone, it would be good for the Republican Congress to seek articles of impeachment on that basis.

No one will try to argue that usurping legislative laws with executive orders is not an impeachable offence, but they will try and undermine it in other ways—like ensuring that liberal Republicans in the Senate don’t vote to impeach.

2) File Suit against the president: Lack of legal standing is an issue that has long been used to deny the public the right to challenge unconstitutional laws before they do any damage. The courts have long ruled that someone has to first have their rights violated by an unconstitutional law and suffer damage before they can bring suit. This should not be, but the courts have set up this precedent to limit dissent. The leadership of the House or Senate should have standing in any case where they petition the court to rule on the constitutionality of a law, but that has rarely been used, as pointed out by the Constitution Center:

Senator Rand Paul suggested, “I think with regard to immigration reform, [the president] is doing something that Congress has not instructed him to do and in fact has instructed him otherwise, so I think the Supreme Court would strike it down,” said. “That takes a while, but that may be the only recourse short of a new president.” The reality is the Court in the past did rebuke President Harry Truman in the 1952 Youngstown case. The Court also ruled against President Bill Clinton in 1995 in a government labor dispute involving an executive order. But these were rare victories and a Supreme Court action may not happen quickly, if at all.

The House can file a lawsuit against President Obama. Actually, the House leadership has been trying to sue Obama since the summer, when an outraged John Boehner said a lawsuit was imminent over President Obama’s delay in implementing parts of the Affordable Care Act. The House has just hired its third new attorney in the lawsuit effort, after the first two resigned. That suit hasn’t been filed, [part of what I believe was Boehner’s disingenuous intent from the beginning] but the House leaders could add the immigration order to it.

The states can sue President Obama. Current Texas Governor Rick Perry has already threatened to do this. And incoming Texas Governor Greg Abbott has filed 30 lawsuits against the Obama administration as the state’s attorney general, and he is on the record as stating Texas has suffered harm from its border crisis due to alleged inaction by the federal government. At a GOP governor’s meeting on Wednesday, Louisiana’s Bobby Jindal seemed to lean toward the House lawsuit option, but not strongly. “We have separation of powers in this country for a reason,” Jindal said. “This president, if he wants to change the law, he should go to Congress, get a bill passed, work with the House and the Senate.

I think that an individual member of Congress has standing to file suit, but the Supreme Court may well disagree. Everything should be tried. If nothing else, as in the failure of the judiciary to rigorously go after Obama’s ineligibility to be president, it will at least tell us who is on the dark side.

3) Defund the executive agencies implementing amnesty: This is a very difficult strategy because the president holds all the cards and can use the cutoff of funds to the INS, for example as an excuse to shut down all deportations. As we also saw during the last manipulated government shutdown, the president has the power to cut only where it hurts the public so as to make this tactic very damaging to the Republican Congress. What needs to be done first is a law stating that Congress has the power to dictate specifically how funds are allocated by the executive. But the Republican leadership will sabotage any truly effective measure.

Jeffrey L. Mazzella of CFIG.org issued an alert saying that, “Republican Leaders Negotiating Behind Closed Doors With Democrats To Fund Obama’s Unconstitutional And Lawless Amnesty Decree!

All it takes to stop Obama’s unlawful amnesty decree is a few simple words. Senator Jeff Sessions has already laid out what needs to happen:

“Here’s how we can stop him: President Obama’s executive amnesty will not be easy to execute. U.S. Citizenship and Immigration Services will have to be ordered to redirect funds and personnel away from its statutorily mandated enforcement duties and towards processing applications, amnesty benefits, and employment authorizations for illegal immigrants and illegal overstays. It is a massive and expensive operation. It cannot be implemented if Congress simply includes routine language on any government funding bill prohibiting the expenditure of funds for this unlawful purpose.”

Simple, right? Apparently, not…Sessions again: “Yet reports have surfaced of plans to pass a long-term lame-duck spending bill through Harry Reid’s Senate that contains no such prohibition. This would be unthinkable.”

The Weekly Standard confirms what Sessions is saying: “The federal government is currently funded through a continuing resolution that runs out at midnight on December 11. Salmon, echoing similar calls from Republican senators Jeff Sessions of Alabama and Mike Lee of Utah, proposes that Congress pass a bill that would fund the government until early next year. If the president moves ahead with his executive amnesty, the expiring continuing resolution would give Republicans an opportunity to block funding for the president’s action after both houses of Congress are under Republicans’ control.”

“But that plan has a tough road ahead. Republican leadership in the House is eager to pass a spending bill through the 2015 fiscal year before the start of the new Congress. Members from both parties on both sides of the Capitol began formally meeting last Tuesday to negotiate the details of an omnibus spending bill.”

You read that right. The GOP Leadership is “EAGER” to give Barak Obama the funds he needs to implement his unconstitutional and lawless amnesty decree… they’re meeting behind closed doors at this very moment, and it’s up to us to see to it that they don’t get away with it.

Some Republican leaders are already trying to frame the funding argument as an all or nothing fund the government or shut it down. That’s simply not true. It is true that the Dems in the Senate won’t pass a bill with that restrictive language, but the Republicans can simply not fund the government for a short period until they get into office in January and then pass the restrictive language.

But the downside is that the Obama administration will claim that in the interim period they have already processed millions of illegals and given them green cards. They’ll ask, “Are you Republicans going to undo that?” Defunding won’t be able to undo that, and so it is very possible that the Obama administration may make a computer entry for all 5 million plus illegals just so it can’t later be undone by defunding.

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Related:

Joel Skousen: 75% in Congress are Blackmailable, while only about a dozen Congressmen are both clean and willing to fight the system

(video) Obama Says 25 TIMES that Amnesty by Executive Order Is Illegal & Unconstitutional + Unwise & Unfair — “We’re also a nation of laws. That’s part of our tradition.”

(photo) Obama: The Man Who Would Be King

(video) Obamacare Architect Confession: Created Lies For Obama — ACA’s passage relied on “stupidity of American voters”