Our Constitution is clear: our elected representatives in Congress must work together to write our federal laws, and our president must faithfully execute them.
We loan each branch of our federal government specific and enumerated powers, and the Constitution’s separation of powers provides critical protections against politicians amassing too much power and turning it against us. Presidents don’t get to pick and choose which laws they will enforce and ignore based upon their personal political preferences. And presidents certainly don’t have constitutional authority to write or rewrite our laws — even if the policy results are popular. If a president doesn’t like the law, he must persuade Congress to change it. In the meantime, he must faithfully execute it.
Unless, of course, you’re President Obama. Indeed, in 2012, after nearly four years of his repeated failed efforts to persuade Congress to rewrite our immigration laws, Obama simply ignored them, pulled out his famous pen, signed a 3-page memorandum and effectively offered immigration amnesty to an estimated 1.7 million minor aliens through executive fiat.
He called this Deferred Action for Childhood Arrivals (DACA). Two years later, he added 4.3 million illegal aliens through another short memo. He called this one Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
What was so brazen about these fiats granting immigration amnesty to up to 6 million illegal aliens was: (1) Obama previously acknowledged he didn’t have the power to do what he went on to do; (2) he violated clear federal immigration statutes in the process; and (3) even if those statutes didn’t preclude his lawlessness, Obama didn’t even pretend to jump through the bureaucratic hoops — the Administrative Procedures Act (APA) — that courts pretend make unconstitutional lawmaking by the president (somehow) constitutional.
Amnesty proponents and opponents duked it out in the federal courts for years, including a 4-4 stalemate in the Supreme Court following Justice Scalia’s passing. The newly-elected President Donald Trump ordered Obama’s amnesty to end. As Justice Clarence Thomas wrote: “To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.” But in June 2020, Chief Justice John Roberts switched his vote and joined the liberals in essentially ruling that Trump didn’t have good policy reasons to end Obama’s amnesty.
In other words, even though Obama directly violated federal immigration statutes and largely skipped the bureaucratic process of the APA to devise his amnesty schemes, the Court held that Trump needed to jump through those hoops to end them. Liberals cheered — until now.
In December 2018, Trump faced a surge of economic migrants at our southern border, many of whom falsely claimed political asylum. By following existing (and illegally ignored) federal immigration statutes and jumping through various APA bureaucratic hoops, Trump generally ordered that asylum seekers from Central America must remain in Mexico — still safe from the alleged political persecution from their home countries — while American immigration judges adjudicated their asylum claims. The United States provided economic assistance to Mexico to house the asylum claimants, and they lost a very powerful incentive to falsely claim asylum status — that is, a free ticket into the United States where they oftentimes skipped their asylum hearings and lived happily ever after running away from the law. As DHS and a federal district court later found, Trump’s “Remain in Mexico” policy dramatically reduced economic migration via bogus asylum claims.
On Inauguration Day 2021, President Biden suspended Trump’s “Remain in Mexico” policy. But Biden and his lawyers, who issued a “two-sentence, three-line memorandum,” apparently didn’t bother to read — or didn’t bother to care about — the Supreme Court’s 2020 DACA ruling.
So Texas and Missouri sued Biden, arguing among other legal problems that Biden didn’t jump through the necessary bureaucratic hoops of the APA before ending Trump’s “Remain in Mexico” policy. A federal district court held a trial — and agreed. So did the Fifth Circuit. And so did the Supreme Court in a brief unsigned order citing that very June 2020 DACA decision that foiled Trump.
But we don’t hear the liberals cheering this time. Because they got hoisted with their own petard.
Presidents have to play by the same rules, whether Trump or Biden. Biden would do well to quit fighting Trump’s wildly successful “Remain in Mexico” policy and focus his energies on the many ongoing failures of his own administration, from rising inflation, to a worsening border crisis largely of his own making. But if the past is prologue, it will likely be the left-wing, pro-amnesty activists running his administration who make that decision. And that will be to the detriment of the rule of law, our Constitution and the American people.
The silver lining for liberals: Vice President Kamala Harris, our (missing) border czar, just got her border crisis largely fixed for her. And she managed to do this by accomplishing nothing. The story of her political career.
Mike Davis is the founder and president of the Article III Project (A3P), a grassroots advocacy organization that supports constitutionalist judges, fights radical assaults on judicial independence and opposes nominees outside of the mainstream. Davis previously served as the chief counsel for nominations for then-Senate Judiciary Chairman Chuck Grassley (R-IA), where he served as staff leader for the confirmation of Justice Kavanaugh and a record number of federal circuit judges. Davis previously clerked for Justice Neil M. Gorsuch, both on the U.S. Supreme Court and the U.S. Court of Appeals for the 10th Circuit.