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President Obama wants to change immigration policy based on his political agenda, not what's in the law.

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Obama’s Lawlessness on Immigration

President Obama wants to change immigration policy based on his political agenda, not what’s in the law.

It is becoming increasingly clear that, when it comes to illegal immigration, the Obama Administration has a disturbingly cavalier approach to what the law requires.   Three recent examples illustrate his disdain for the plain meaning of the law.

First, during an interview in Ecuador, Secretary of State Hillary Clinton let the cat out of the bag about the Obama Administration’s plan to sue Arizona.  In so doing, she revealed who was sitting in the driver’s seat when it came to the Justice Department’s decision:  “President Obama has spoken out against the law because he thinks that the federal government should be determining immigration policy. And the Justice Department, under his direction, will be bringing a lawsuit against the act.”

Clinton was correct in her prediction. On Tuesday, the Obama Justice Department filed suit against the Arizona law, calling the measure “invalid” and saying it interfered with federal immigration responsibilities.

In other words, the same political calculations that drove President Obama to criticize (and mischaracterize) the Arizona law, now drove the Justice Department to bring the suit.  Not to mention the potential embarrassment that would result if the Justice Department came to an independent conclusion that Arizona’s law is on solid ground.  Barack Obama-constitutional scholar that his fans make him out to be — can’t say one thing and have the Justice Department say another.

The problem with Obama’s strategy is that the federal judges will actually read the Arizona law and they will find that there is precious little for the Justice Department to attack.  Put simply, there is no federal statute that Arizona’s law conflicts with.  The opinions of the Fourth, Fifth, Eighth, Ninth, and Tenth Circuits of the U.S. Court of Appeals (which are all of the circuits that have addressed the issue) support the authority of Arizona to enact its law.  Another obstacle for the Obama Administration is the fact that the Justice Department’s Office of Legal Counsel in 2002 authored an opinion holding that state police officers have the authority to arrest illegal aliens-the same authority underlying the Arizona law.  In short, the Obama Administration’s suit is on very thin ice.

But even if one were to imagine that the administration had a strong legal argument, there would have been yet another reason not to file the lawsuit:  It is completely unnecessary.  Five suits have already been filed by the ACLU and its fellow travelers  The issue is already teed up for the federal courts to decide.  The administration achieves nothing by launching its own litigation, except for rallying the Democrats’ open-borders base before the 2010 elections.  The Justice Department should never be abused in this blatantly-political manner.

Case No. 2:  According to Arizona Sen. John Kyl, Obama told him in a one-on-one conversation that the administration was not going to secure the border until Republicans agreed to go along with an amnesty for illegal aliens.  In other words, enforcing the law is optional in the eyes of the President-just another bargaining chip for him to use in order to get what he wants.  The White House (not Obama himself) now claims that Sen. Kyl is lying.  But given Kyl’s reputation for honesty, and the fact that the Obama Administration has radically reduced immigration enforcement since taking office, Kyl’s account of the conversation has more credibility.

Obama’s statement reveals that he has very little regard for his obligation under Article II, Section 3, of the Constitution to “take care that the laws be faithfully executed.”  He may not like federal immigration laws, but that does not entitle him to suspend them.

Case No. 3: According to eight Republican senators, the Obama Administration is now contemplating the possibility of unilaterally granting an amnesty to illegal aliens by executive action.  How would the administration pull this off?  Apparently by granting “parole” to millions of illegal aliens, en masse.

The problem with this scheme is that federal law doesn’t allow it.  The avenue of granting an illegal alien parole-and lawful presence in the United States-was created by Congress to be used on a case-by-case basis.  If, for “urgent humanitarian reasons” or “significant public benefits,” a particular alien needed to be allowed to remain in the United States, then the executive branch has the authority grant that alien parole.

The meaning of the law has been clear for decades.  But now Obama is considering changing it to give himself unprecedented power to grant amnesty to millions with the wave of his hand.  Never mind that the granting of a mass amnesty is plainly a legislative action-altering the legal rights of millions-and the Constitution reserves such legislative powers to Congress.

Taken together, these three episodes paint a picture of lawlessness.  The Obama Administration seems to believe that the President has the authority to set aside a state law because it is contrary to his political agenda, suspend the enforcement of federal laws for political reasons, and seize from Congress the legislative power to grant an amnesty.  So much for a country governed by the rule of law, not the rule of man.

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Written By

RNC Member Mr. Kobach is Chairman of the Kansas Republican Party, former Counsel and chief immigration adviser to Attorney General John Ashcroft (2001-03), and the attorney defending the cities of Hazleton, Pennsylvania, and Valley Park, Missouri, against the ACLU in court. He is also Professor of Law at the University of Missouri (Kansas City).

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