Bobby, 30 June 2014
I: News Update
II: Immigrant Rights and Deportation
A: Simple Summary
III: Who Holds Veto Power
IV: Conclusion
I: News Update
You know what I don't like? Defending the president. I really hate it when the awful shenanigans of America's reactionaries compel me to defend Barack Obama. Such incidents just serve to paint me and other true progressives as blindly partisan Democrats, those of whom who still support Obama on balance stand without excuse.
It's happening again as John Boehner is fitting to sue — yes, not impeach but sue — President Obama. The House Speaker claims that the president has violated the constitution's "faithfully execute" clause (US Const. Art. 2, §3),which states that "[the president] shall take Care that the Laws be faithfully executed." The problem for Boehner arises over Obama's use of Executive Orders and Memorandums dealing with things such as immigration and environmental protection. The plan goes that Boehner can use the courts to force Obama to shut down his last remaining avenues to take any sort of action.
This stunt by the Speaker — or the Prince of Orange, as I like to call him — while annoying, does still raise interesting constitutional questions. First off, are the actions that Boehner points to constitutional violations?
II: Immigrant Rights ad Deportation
On the EPA front, there has been no concrete example presented by the Republicans for us to examine. The immigration issue, however, can be much more straight forward. What Boehner is throwing a fit over is primarily the president's policy on the deportation of undocumented immigrants, which is that Immigration and Customs Enforcement (ICE) does not usually deport these immigrants unless they have committed a crime, especially if the immigrants are under thirty and enrolled in school. Republicans get especially mad over this policy because it is practically the same as the DREAM Act, a bill to allow children to remain in the US, which failed to pass Congress. Conservatives see this action absent legislative approval as wild executive overreach.
However, the president's basic nod to human rights has as much legal justification as it does moral appeal. In fact, in the case of the undocumented children, the Republican policy of blind mass-deportation would itself be unconstitutional.
While it is true that violating a visa or crossing the border unapproved is a civil offense -- not a felony, mind you -- such misdemeanors committed by parents, to which children were "accomplices," you might say, never befall legal punishment onto the children. If a parent directs a child to, say, shoplift from Best Buy, any American court would hold that the child was not responsible for the action. This principle is magnified extraordinarily when the kids are posed with the choice of either following their parents to break US law or be orphaned in the Third World. No moral justice system would ever find that child guilty of anything, and neither would even the grotesquely spastic US "justice system" if we faced an immigration problem from Canada, instead of the Spanish-speaking half of the continent.
Now that it's been established that the undocumented children can't be held liable for their misdemeanor, we can see that a mass deportation would be outright unconstitutional. The fifth amendment states that "no 'person' (which is an important word according to the Supreme Court) shall be deprived of life, liberty, or property, without due process of law". "Liberty," as it is used in the fifth and fourteenth amendments, has generally been interpreted to encompass all civil rights. (See Meyer v. Nebraska, 1923: " [L]iberty denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness of free men."
This concept includes the right not to be deported. I think any reasonable person would say that the ability to avoid being scraped up from one place and dropped off thousands of miles away to be a "privilege..essential to the orderly pursuit of happiness," especially if the party in question is under thirty years old, as the DREAM Act would have dealt with.
Now we return to that tricky word "person." To sum up many years of jurisprudence into a few sentences, the Supreme Court has developed two large classes of people in the legal system: people and citizens. "Citizens" is very succinctly defined by the fourteenth amendment. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." As a clear example of the citizen-person dichotomy, we can look at two different clauses of this amendment. The Due Process Clause ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") explicitly deals with US citizens, while a few sentences later, the Equal Protection Clause ("[No state shall] deny to any person within its jurisdiction the equal protection of the laws.") tells of a much broader group: persons under state jurisdiction. Clearly something is different. When all hope seems lost, the judiciary comes in to save the day. In the 1971 case of Graham v. Richardson, the Supreme Court ruled that immigrants are constitutionally "persons." For that reason, immigrants do have some constitutional rights, such as fifth amendment protections.
A: Simple Summary
Whew. The past few paragraphs were not fun to write, so I can imagine that they were a struggle to read. They would be for me, at least. For that reason, I want to consolidate the argument I made into a syllogism.
1. ∵ While not citizens, immigrants are constitutional persons. (Fourteenth Amendment, Graham v. Richardson)
2. ∵ Not being deported is a liberty. (Meyers v. Nebraska)
3. ∵ Liberty of persons cannot be deprived without due process. (Fifth Amendment)
4. ∴ Undocumented immigrants could not be deported without due process. (1, 2, 3)
5. ∵ Only if due process produced a conviction could liberty be deprived. (Postulated)
6. ∵ Juvenile undocumented immigrants could not be justly convicted of illegal immigration. (Postulated)
7. ∴ Neither Barack Obama, nor any part of government, could legally deport juvenile undocumented immigrants in mass. (4, 5, 6)
8. ∴ Barack Obama's policy of not doing so is the only constitutional avenue. (7)
9. ∴ He has not violated Article 2 of the Constitution. (8)
See: I told you it was no fun defending the president.
III: Who Holds Veto Power?
The whole reason I wanted to highlight Boehner's cries of unconstitutional action by Mr. Obama is because of the terrific irony. Boehner said in regards to his lawsuit, "what we've seen clearly over the last five years is an effort to erode the power of the legislative branch."
That statement borders on comedy once you realize that not even one year ago, Boehner was leading an effort by Congressional Republicans to steal the veto power from the executive branch.
It all started with the ACA. Yes, Obamacare. If there's one thing that all Republicans agree on, it's that Obamacare needs to go. Republicans in Congress have tried taking constitutional ways to abolish the law. They've voted scores of times to repeal it, but they never have the votes. So instead, they tried to take the entire United States hostage in order to veto the law.
The veto power clearly belongs to the president (US Const. Art. 2, §7), and the power to repeal laws belongs to Congress. The difference between the two is that a repeal requires a legislative majority. In the case of last October's government shutdown, a minority of Congress hijacked the entire federal government trying to get rid of the law. What is it called when a minority section of the government unilaterally dismisses a law? Veto. While unsuccessful, Boehner and his fellow Republicans carried out a botched heist of executive power.
IV: Conclusion
Boehner does not care about the constitutional balance of power; he cares about shielding the people who have him bought. Now that Obama is in his second term, he has the courage enough to tackle real issues facing people outside of the ruling class. He wants to have mercy on undocumented children. He wants to make sure that his own children's children have a habitable environment. If Boehner cared about the constitution or the American people, he would work with the president to pass legislation tackling these issues. If he cared about the constitution, he wouldn't try to veto laws.
Boehner is trying to choke Obama because that's what Boehner's owners want. The oil companies don't want EPA action. The insurance companies don't want the ACA. The military-industrial complex wants undocumented immigrants to stay an issue, so they can keep militarizing our homeland. None of this ever had to do with the law.
