Thursday, April 18, 2013

Why The Obama Regime Administrative Amnesty Is Unconstitutional

A reader, or may it be said, a writer of a letter submitted  to VDare, John E. Jones,they are not always the same, claimed that the ongoing Obama Regime Administrative Amnesty was completely legal based on various provisions of the law that provide for "discretion" by the executive branch as well as an interesting claim that immigration actions are beyond judicial review.

Today's Letter VDare October 27, 2012
A Bay Area Reader Asks Why, Specifically, Is Obama’s Administrative Amnesty Unconstitutional?
Calling President Obama's deferrals unconstitutional misinforms the reader. 
The immigration statutes are larded with provisions granting discretion to the Attorney General; the two year DREAM act deferrals are an administrative exercise of discretion authorized by existing law, especially given the well established principle that the executive, in immigration matters, exercises authority akin to the foreign affairs power, an area almost immune to judicial review. 


While bandying about the charge of unconstitutionality may avoid the need to tell the reader all this, one would hope readers would receive better.

Well, challenge accepted.

First, let's define the issue.  This blog has been at the forefront on identifying the ongoing Obama Regime Administrative Amnesty, which is not restricted to the most flagrant abuse of the Constitution, the Deferred Action for Childhood Arrivals (DACA) amnesty, but the ongoing non-feasance by U.S. Customs and Immigration Enforcement.

But for the record and from what John E. Jones, if that is your real name, appears to refer to is DACA.  But as with most who know nothing of immigration law Jones' missive has a kernel of truth.  Congress, note that, Congress granted the Attorney General and subsequently the Secretary of the Department of Homeland Security the authority to parole aliens into the United States in the Immigration and Nationality Act (INA).  This is significant in that the INA is just that, an Act of Congress.  Contrary to Jones's claim, the Executive Branch does not hold any independent authority regarding immigration and naturalization, as with naturalization, it is Congress that is granted the authority to create a uniform standard for naturalization and subsequently that authority has also been exercised with regard to immigration as well.

Now in one area, the Executive has been delegated significant authority, the power to parole into the United States aliens otherwise not authorized to enter the United States and prohibited to do so by the INA.  Congress prohibited entry into the United States many different categories of aliens in Section 212(a) of the Act, and in Section 212(d)(5)(A) it granted the Executive parole authority:

The Attorney General may, except as provided in subparagraph (B) or in section 214(f) , in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. 

Note that the authority is first granted to the Attorney General by an Act of Congress, not some inherent authority, and is limited to a "case-by-case basis," not to whole classes of aliens, such as childhood arrivals, and has an "urgent humanitarian" or "significant public benefit requirement" which is limited to those aliens applying for admission, not those present in the United States.

Also note that aliens may only remain "temporarily" and should be returned to custody and be treated as any other arriving alien.

In no cases do DACA aliens qualify for parole, and the Regime has even admitted this fact, they remain illegal aliens, as opposed to paroles, who have a legal status.  The Regime though has granted these illegal aliens without legal status employment authorization without Congressional authority.  Congress though is the branch of government that authorizes alien employment.  That authority is from Article I of the Constitution, not Article II of the Constitution.

Furthermore it is clear that the DACA amnesty recipients are not temporary or limited, nor are they going to be returned and treated at any time as any other arriving alien without a visa permitting them to apply for admission like any other alien.  They are here to stay as Barak Hussein Obama has said.

While this really has nothing to do with the myth of judicial review that Jones cites as some how some way restricting the Executive in other areas, but not in immigration and foreign affairs; however the restrictions on the Executive's authority in the area of immigration are quite clear in Article I of the Constitution; the uniform standard for naturalization and the general legislative authority, the necessary and proper clause:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

There is nothing to do with immigration anywhere in Article II.  Receiving foreign ministers and executing a foreign policy have nothing to do with aliens entering and remaining in the United States.  Laws necessary and proper for regulating aliens remain in Article I of the Constitution.

In fact the Executive recognizes that parole authority is limited; here is what U.S. Citizenship and Immigration Services (USCIS) says about the parole authority:

The legal foundation for humanitarian parole comes from the Immigration and Nationality Act (INA). Section 212(d)(5)(A) of the INA states that USCIS has discretion to parole an individual into the United States temporarily under certain conditions for urgent humanitarian reasons or significant public benefit on a case-by-case basis.

One can see that it is limited and restricted to individual cases, not whole classes of aliens.  But in any event, remember, DACA does not parole aliens, it just grants them a benefit, employment authorization, not authorized by Congress.

Of course the other aspect of the ongoing Obama Regime Administrative Amnesty is the ongoing non-feasance by the Executive in the enforcement of immigration laws.  It should be pointed out to Mr. Jones, if that is his real name, that the President takes an Oath of Office to see that the laws of the United States are faithfully executed:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

and from Article II:

"...he shall take Care that the Laws be faithfully executed..."

Quite clear. No room for discretion here, as least not any discretion authorized by Article I of the Constitution.  Barak Hussein Obama took an oath to uphold and execute the laws of the United States, but instead he was unlawfully and in violation of the Constitution granting benefits to aliens without authorization in the law, and in fact in contravention of various laws of the United States.

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