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. Townhall.com 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.