With the Republican surrender on President Obama’s amnesty decree that I predicted over a month ago now taking shape, an appeal to duty may be futile. Nevertheless, it is still worth being blunt about this. The Beltway GOP’s retreat would be a profound dereliction of duty – specifically, the duty that Congress owes to the states.
The federal government, very much including Republican lawmakers and conservative judges, has systematically disarmed the states of their capacity for self-defense. The power to defend one’s territory – including the power to remove aliens who have no legal right to be present – is an ineliminable component of sovereignty. The preservation of state sovereignty, in turn, is part of the core guarantee that induced the states to ratify the Constitution.
At a minimum, then, federal law – made in Congress, where the states are represented – must preserve the sovereign right of states to protect themselves. Obama’s executive action not only bypasses Congress; it undoes and countermands congressional laws designed to fulfill the federal government’s duty to protect the states. The president does not merely purport to establish enforcement priorities, as any president must do. He rewrites federal law under the guise of “prosecutorial discretion.” More blatant, he presumes to confer a de facto amnesty – an adjustment of status from deportable to non-deportable – as well as other legal benefits that the Constitution empowers only Congress to grant – e.g., work permits and Social Security numbers.
Of course, as I explain in Faithless Execution, such actions flout the president’s oath and duty to execute the laws faithfully. But that is not the half of it. Congress, too, is derelict if lawmakers agree – reluctantly or not – to fund Obama’s lawlessness. Senators and Members of the House are not bystanders; they are elected representatives who have a duty to act. It is immaterial how they personally feel about Obama’s malfeasance. The only relevant thing is that they have the power to stop it by refusing to pay for it. If, despite having that power, they consciously devise a legislative process that inevitably results in the provision of funding for the president’s decree, then they are knowingly aiding and abetting his lawlessness. That makes them equally guilty, case closed.
That, moreover, would be a profound betrayal of the states, whose inability to defend themselves from illegal immigration is largely attributable to Congress’s encroachments.
A little history. The federal government was given no responsibility for immigration enforcement. Indeed, for the first century-plus of constitutional governance, there was no Justice Department and nothing remotely resembling the federal domestic law-enforcement system we have today. The Constitution gave Congress the power to set the qualifications for American citizenship. Enforcing the law, including the laws against illegal presence within the territory of a state, was a state responsibility.
Nowadays, this division of power is thought quaint. But it was actually more sensible and humane than what we have now. It recognized that because economic and social conditions vary widely in a large, growing country, a one-size-fits-all immigration policy imposed by Washington would be a terrible idea. Under our former system of federalism, states that wanted to be more welcoming of non-Americans had the capacity to do that. They could reap the benefits of generous immigration policies as long as they did not socialize the costs. This, in turn, encouraged a healthier brand of immigration: people who came to our country because they wanted to be Americans and live the dream of self-made success through hard work.
The state interest in immigration enforcement was always obvious. What was not clear was whether the federal government had a role to play beyond securing the country from foreign invasion. Eventually, a role was divined, mainly by the courts. Ironically, a major part of the rationalization was that because the federal government exercises sovereignty on behalf of the American people as a whole, it has to be able to control its borders and the internal activities of aliens because self-defense in an ineliminable ingredient of sovereignty.
Alas, the sovereign right of self-defense is exactly what the federal government has now stripped away from the states. To understand how this happened is to understand why the coming Republican decision to collude in Obama’s lawlessness is so indefensible.
Immigration enforcement hews to a pattern that has eroded federalism since the start of the Progressive Era: We go from no federal role, to the invention of a small federal role, to the federal government’s incremental consumption of the state role, to total federal control. In immigration, the legal theory behind this progression is “preemption.”
Under that rubric, once the federal courts weave a federal interest into some area of the law, even an area that implicates a manifest state security concern, the states are permitted to act only at the sufferance of the feds. As long as Congress announces its usurpations with sufficient clarity in the statutes it writes, the states can be preempted – evidently, according to the contemporary Supreme Court, no matter how much these intrusions undermine the understandings on which the nation was founded.
Notice, however, the crucial part of this doctrine. Even if we disagree with it (and your humble correspondent has repeatedly expressed major reservations), preemption at least has a limiting principle: It is controlled by the statutes Congress writes. What Congress legislates is the law. That is what the president swears to execute faithfully, and it is thus what limits state action.
President Obama has strategically distorted preemption. He knows that preemption straitjackets the states. And, as a parallel matter, he knows the doctrine of prosecutorial discretion prevents Congress from dictating how the executive enforces – or declines to enforce – the law.
Concocting these two doctrines, Obama monarchically proclaims that he is the law: Congress, he says, has no power over his “enforcement priorities” – even if his “priorities” include conferring positive legal benefits on illegal aliens that only Congress is empowered to confer – because law-enforcement is an executive function. The states, he says, have no power over his “enforcement priorities” because they are “just” states and are now preempted not just by statutes but by the way he unilaterally decides to enforce the statutes – even if that is by not enforcing those statutes.
Of course, such an arrangement has no limiting principle, and it runs roughshod over the separation-of-powers doctrine – the foundation of the Constitution and its protection of liberty.
According to the Beltway soap opera story line, we are all supposed to be captivated by the political blame game over a phantom “shutdown” of the Department of Homeland Security. But down here on planet Earth, politics is beside the point.
The federal usurpation of the states’ capacity to defend themselves makes Congress responsible for the security and economic welfare of the states. Toward that end, Congress has enacted laws to protect the states against the wages of illegal immigration – the threats posed to public safety, to social services underwritten by state taxpayers, to the job market, and to the rule of law. These are the kinds of laws the states would enact themselves, and would enforce in a manner consistent with local conditions and sensibilities, if the federal government had not gobbled up their powers.
Those congressional laws are the states’ only defense. Those laws are what President Obama, through his illegal executive actions, is eviscerating. Therefore, Congress not only has an obligation to protect the institution of Congress, the legislative authority of which President Obama is usurping. Congress also has an extraordinary duty to defend the security of the states, which federal law has rendered defenseless.
Republicans should stop talking about this lawless amnesty as if it is only Obama’s decree. From the point of view of the states, the offense is coming from the federal government – not just the president. Congressional Republicans are a part of that government. They have their own constitutional obligations. If they aid and abet the president’s shredding of immigration laws that are meant to protect the states, then they are betraying the states and their citizens every bit as much as the president is.
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