Can the President Rewrite Federal Law?
Written By: By Judge Andrew Napolitano | Posted: Thursday, June 28th, 2012
Here we go again. Is the Constitution merely a guideline to be consulted by those it purports to regulate, or is it really the supreme law of the land? If it is just a guideline, then it is meaningless, as it only will be followed by those in government when it is not an obstacle to their purposes. If it is the supreme law of the land, what do we do when one branch of government seizes power from another and the branch that had its power stolen does nothing about it?
Late last week, President Obama, fresh from a series of revelations that he kills whomever he pleases in foreign lands, that the U.S. military is actually fighting undeclared wars in Somalia and Yemen, and that the CIA is using cyber warfare - computers - to destabilize innocents in Iran, announced that he has rewritten a small portion of federal immigration law so as to accommodate the needs of young immigrants who came to the U.S. as children and remained here. By establishing new rules governing deportation, rules that Congress declined to enact, the president has usurped the power to write federal law from Congress and commandeered it for himself.
Immigrants should not be used as political pawns by the government. When government does that, it violates the natural law. Our rights come from our humanity, and our humanity comes from God. Our rights are natural and integral to us, and they do not vary by virtue of, and cannot be conditioned upon, the place where our mothers were physically located at the time of our births. Federal law violates the natural law when it interferes with whom you invite to your home or employ in your business or to whom you rent your property or with whom you walk the public sidewalks.
When the government restricts freedom of association based on an immutable characteristic of birth - like race, gender or the place of birth - it is engaging in the same type of decision-making that brought us slavery, Jim Crow and other invidious government discrimination. Regrettably, the feds think they can limit human freedom by quota and by geography. And they have done this for base political reasons.
Along comes the president, and he has decided that he can fix some of our immigration woes by rewriting the laws to his liking. Never mind that the Constitution provides that his job is "to take care that the laws be faithfully executed," and that "all legislative power" in the federal government has been granted to Congress.
He has chosen to bypass Congress and disregard the Constitution. Can he do this?
There is a valid and constitutional argument to be made that the president may refrain from defending and enforcing laws that he believes are palpably and demonstrably unconstitutional. These arguments go back to Thomas Jefferson, who refused to defend or enforce the Alien and Sedition Acts because, by punishing speech, they directly contradicted the First Amendment. Jefferson argued that when a law contradicts the Constitution, the law must give way because the Constitution is the supreme law of the land and all other laws are inferior and must conform to it. This argument is itself now universally accepted jurisprudence - except by President Obama, who recently and inexplicably questioned the jurisdiction of the Supreme Court to invalidate the Affordable Health Care Act on the basis that it is unconstitutional.
Nevertheless, there is no intellectually honest argument to be made that the president can pick and choose which laws to enforce based on his personal preferences. And it is a profound violation of the Constitution for the president to engage in rewriting the laws. That's what he has done here. He has rewritten federal law.
Only Congress can lay down specifics such as in order to avoid deportation and qualify for a two-year work visa, one must have entered the U.S. prior to age 16 and possess a valid American high school diploma or be a military veteran, as the president now requires. By altering the law in this manner - by constructing the requirements the government will impose - the president has violated his oath to enforce the laws as they are written. His second responsibility in the Constitution (the first is to defend the Constitution) is to enforce federal laws as Congress has written them - hence the employment of the word "faithfully" in the Constitution - not as he wishes them to be.
Congress should have enacted years ago what the president is now doing on his own, because it is unjust to punish children for the behavior of their parents, and it is unjust to restrict freedom based on the place of birth. But this can be remedied only by Congress. If the president can rewrite federal laws that he doesn't like, there is no limit to his power. Then, he will not be a president. He will be a king.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."
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