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Obama the Originalist when it Comes to Immigration!!!!

Art. II, section 3, of the Constitution announces that the president “shall take Care that the Laws be faithfully executed.”

But what does that mean in the context of the current immigration law/action appealed to the Supreme Court?

That is, what mandates really derive from this apparent command? There are generally five categories of executive power at work.  And even though one might become president upon certain legal or political realities, the president cannot execute presidential power until he has taken the prescribed oath [Art. II, section 3, cl. 7], which is why Chief Justice Roberts had to re-administer, in the middle of the night, the oath he botched when Obama commenced his second term. 

So, what are those powers of the president that might require “faithful” execution?  First, there is the executive power that the Constitution expressly confers on the President by the opening and succeeding clauses of article II; then there is the sum total of the powers that Congress assigns to the President; then there are the discretionary powers that Congress confers on heads of departments and other executive agencies; then there is the power implicit in the duty to enforce federal criminal statutes; then there are certain “ministerial duties” which might not invite discretion in their execution.

But since he is sworn to uphold the Constitution, the ultimate “faithful” execution of the laws by the president is faithfulness regarding the limits of the Constitution and its assignment of power in a limited Republic.

The irony of Obama deferring congressional mandates regarding certain immigration policies, or refusing to execute them at all, is that he could be credited with being a true originalist by that action/inaction.  You see, the Framers did not confer upon Congress a general power over immigration policies.  Contrary to popular mythology, fanned by the ignorance about the Constitution that runs rampant in the populace [and its courts], the Congress is expressly empowered “To establish a uniform Rule of Naturalization” [Art. I, section 8], but nowhere was it empowered to generally regulate immigration, writ large.  And since the subject matter was touched upon by the naturalization clause, the inference is powerful, in the constitutional construction norm of expressio unius exclusio alterius est, that Congress does not have any other power over immigration.

So, even though the Fifth Circuit case that is being appealed to the Supreme Court focused on the Administrative Procedures Acts issue regarding the executive action over immigration policies and left for another day the “faithfully executes” clause issue, if it is raised in the Supreme Court action, the so-called originalists there will have a political/philosophical problem of the magnitude of the constitutional mess they gave us with Bush v. Gore.

That is, if Congress has no legitimate power over immigration generally, then Obama is being “faithful” to his duties under the Constitution is refusing to heed illegal congressional mandates, and in refusing to wait for further illegal assistance from Congress.

Ah, yes: Obama the originalist!  I am sure Scalia, Thomas, and Alito are having…, well, fun with that!  They have an unexpected ally!

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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