The Obama Administration’s Attack on the Constitution: Part 1, Immigration

When the history of Barack Obama’s presidency is written, his unrelenting attack on the Constitution will perhaps be the blackest mark against it. Our constitutional system is, in the end, fragile. It can scarcely withstand the repeated assaults, over a period of eight years, of an executive determined to ignore the law.

Immigration is one of a number of areas where Barack Obama has trampled the Constitution without even the fig leaf of a plausible legal rationale. He has issued a series of executive orders that flatly contradict the nation’s immigration laws, as enacted by Congress and signed by prior presidents. It is hard to imagine anything more flagrantly unconstitutional than Obama’s planned issuance of millions of work permits to illegal aliens who are prohibited from employment by the federal statutes.

Today Senator Jeff Sessions announced, on the Senate floor, that he will oppose President Obama’s nomination of Loretta Lynch as Attorney General of the United States. Here are some excerpts from his speech:

Long before Ms. Lynch’s nomination was announced, I said that I could not vote to confirm any candidate for Attorney General who supported the President’s unlawful executive amnesty. The Attorney General is the top law enforcement officer in the country, and anyone who occupies that office must have total fidelity to the laws and Constitution of the United States.

The Senate must never confirm any individual to this office who will support and advance a scheme that violates our Constitution and eviscerates congressional authority. Congress makes the laws—not the President…

President Obama’s executive action provides illegal immigrants with work authorization, photo IDs, trillions in Social Security and Medicare benefits, tax credits of up to $35,000 a year according to the Congressional Research Service, and even the possibility of chain migration and citizenship. Again, all of these measures were rejected by Congress… One of the most stunning features of the President’s action is the mass grant of work permits to up to 5 million illegal immigrants, taking jobs directly from citizens and legal immigrants. …

At her confirmation hearing, I therefore asked Ms. Lynch about what she might do to protect the lawful rights of legal U.S. workers. Here is the exchange in question:

Sessions: Who has more right to a job in this country? A lawful immigrant who’s here or citizen—or a person who entered the country unlawfully?

Ms. Lynch: I believe that the right and the obligation to work is one that’s shared by everyone in this country regardless of how they came here. And certainly, if someone is here, regardless of status, I would prefer that they would be participating in the workplace than not participating in the workplace.

This is a stunning and breathtaking statement. It is unprecedented for someone who is seeking the highest law enforcement office in America to declare that someone in the country illegally has a “right” to take a job.

Make no mistake, this is a dangerous moment. Jonathan Turley, who is the Shapiro Professor of Public Interest Law at George Washington University Law School, a nationally recognized constitutional scholar, and self-described supporter of President Obama and his policies, has described the current state of affairs as a “constitutional tipping point.” I would like to a moment to read from testimony he delivered before the House of Representatives in February of 2014, nine months before the President announced his unprecedented executive actions:

The current passivity of Congress represents a crisis of faith for members willing to see a president assume legislative powers in exchange for insular policy gains. … Constitutional authority is easy to lose in the transient shifts of politics. It is far more difficult to regain. If a passion for the Constitution does not motivate members, perhaps a sense of self-preservation will be enough to unify members. President Obama will not be our last president. However, these acquired powers will be passed to his successors. When that occurs, members may loathe the day that they remained silent as the power of government shifted so radically to the Chief Executive. … We are now at the constitutional tipping point for our system.

We need to use every power Congress has to defend its legitimate constitutional rights—its delegated legislative powers. The President’s duty is to execute laws passed by Congress, and the Attorney General is his chief law enforcement official. That being the case, I think Congress has a duty to this institution not to confirm someone who is not committed to the basic principles of separation of powers, and indeed has asserted boldly that she intends to continue in violation of them.

What is most striking about Obama’s power grab is how naked it is. There is no veneer of legality; I can’t imagine how any lawyer could argue, in good faith, that the president has the power to unilaterally repeal or amend the statutes of the United States. And yet that is exactly what Barack Obama has done. If the defense against Obama’s attack on the Constitution doesn’t begin with the nomination of Loretta Lynch, who endorses Obama’s immigration orders and claims that illegal immigrants have a “right” to jobs, then where will it begin?

Next up: another stunning usurpation of power by the Obama administration, this time by the Environmental Protection Agency.

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