Et Tu Judge Napolitano? Conservatives Who’ve Gone Soft on Immigration Violators

America is experiencing a frightening new trend. Now even alleged law-and-order conservatives are beginning to argue that it’s okay for foreigners to ignore our immigration laws. recently carried a column by Judge Andrew Napolitano. In that piece, Judge Napolitano claims that President Obama’s Deferred Action for Childhood Arrivals (DACA) program showed “courage.”

Why? According to Judge Napolitano, Mr. Obama was merely doing what every recent president has done. However he was the only one who put it into writing, “thereby giving immigrants notice of what they need to do to avoid deportation and the government notice of whose deportations should not occur.”

Unfortunately, the good judge has gotten his analysis utterly backwards. The Immigration and Nationality Act (INA) specifies clearly, and in detail, what foreigners need to do in order to avoid deportation. And it makes crystal clear to the government who to deport and when. It also has the clear advantage of having been enacted by the Congress of the United States. DACA, on the other hand, was a deliberate attempt to circumvent those portions of the INA that President Obama and his anti-borders cronies didn’t like.

That should be obvious to a supposed expert on constitutional law, like Judge Napolitano. But he argues that, from the Reagan administration onward, each president “has declined to deport undocumented immigrants who bore children here or who were brought here as young children.” Therefore, in Judge Napolitano’s opinion, “Constitutionally, DACA has effectively been in place since 1986, and 800,000 people younger than 40 have planned their lives in reliance upon it. Legally, once a benefit has been given by the government and relied upon, the courts are reluctant to rescind it….”

These are utterly shocking assertions from a jurist who claims to be a constitutional conservative. First, the INA doesn’t say that illegal aliens who have children in the U.S. get to stay, nor does it grant a free pass to illegal aliens brought here as kids. And, while Congress enacted an ill-conceived and disastrous amnesty in 1986, it has not been foolish enough to do so again. In fact, there have been a number of legislative efforts to strengthen immigration law and ensure that the executive branch implements it, as written. So, the claim that DACA has effectively been in place since 1986 is blatantly counter-factual.

Aside from his willingness to ignore immigration law, the judge’s arguments suffer from a major constitutional flaw: U.S. presidents are not free to change the law by simply disobeying it. If they were, we’d live in a dictatorship, where congressional enactments carried no authority. Of course, that is exactly the situation that the Founding Fathers sought to avoid when they drafted and implemented the constitution.

Why are so many legislators, judges, and media commentators so willing to forego obedience to the law and adherence to our basic constitutional principles for uninvited foreign law breakers? That may be a mystery for the ages. But it would be really nice if some of them would devote as much attention to the needs of the hundreds of millions of average Americans who made this country great.

About Author


Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.


  1. avatar

    The judge has been making lots of leftist comments lately. Such reversals are often found to be the result of blackmail, bribery, or bullying.

    • avatar

      NAPOLIlala? Like trump: doesn’t really have any knowledge of our Constitution and are as trustworthy as any CS politician. trump is the swamp. Promised 1st action was to void daca, instead, is pressing to keep it. Your article saying they’ve ended it is an outrageous lie. trump is what he always has been, a double crosser who changes stances every 5 minutes. The integrity of a friggin *********!

  2. avatar

    time to deport these illegals, the lawlessness of the previous administration is over. Time to abide by our laws and deport these people and move on

    • avatar

      “DACA” was “repealed” by executive order. The roundups, particularly of those vermin who flooded into the country after ears Obozo threw the doors open and said come on in, came across the border with signs saying “Oh yes we can”, should have begun three days ago and the deportation buses should have began running two days ago. No delays and no pathways to citizenship. Illegals knowingly broke our law and invaded this country with the intent of getting all the free “goodies” available. Invaders go back to where you came from.

  3. avatar

    What I like to know is, since Obuma BYPASSED CONGRESS with an UNCONSTITUTIONAL LAW, why can’t Trump do the same? I thought us White people were PRIVILEGED!

  4. avatar

    How can you trust someone who once said requiring voter ID was lead to civil rights violations such as “asking for one’s papers”? Yes, that was none other than Andrew Napolitano.