Tag Archives: immigration

The Ninth Circuit Ignores Precedent and Threatens National Security

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

Even if states could articulate a concrete injury, this is not a case in which the courts ultimately can offer redress. The Constitution grants Congress plenary power over immigration, and Congress has vested the president by statute with broad, nonreviewable discretionary authority to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” to protect “the interest of the United States.” Numerous presidents have used this authority to suspend entry of aliens from specific countries.

Further, as the Supreme Court explained in Knauff v. Shaughnessy (1950), the authority to exclude aliens “stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation.” In issuing the order, the president was acting at the apex of his authority. As Justice Robert Jackson noted in Youngstown v. Sawyer (1952): “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” That point the Ninth Circuit ignored entirely.

The order, frequently mischaracterized as a “Muslim ban,” is actually directed at seven countries that the president believes present a particular threat to U.S. security—a view with which Congress agreed in 2015. All are beset by terrorists and so uncertain and chaotic that proper vetting of potential refugees and immigrants is virtually impossible.

President Obama chose to toughen vetting standards for these countries’ nationals rather than bar their entry completely. But if Mr. Trump has a different view of the threat, it is not up to the courts to decide who is right. This is a classic example of a nonjusticiable “political question,” involving matters constitutionally vested in the president and Congress.

Judges—were they adjudicating a suit brought by a party with standing—could overturn the president’s order if it entailed clear violations of due process or equal protection. But attempting to discern Mr. Trump’s motivation in selecting these countries exceeds the judiciary’s proper constitutional role. Judges scrutinize government motives in the domestic context, if presented with allegations that facially neutral governmental action is motivated by invidious discrimination. That inquiry is inappropriate in the foreign-policy sphere.

The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

Messrs. Rivkin and Casey practice constitutional and appellate law in Washington and served in the White House Counsel’s Office and U.S. Justice Department during the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/the-ninth-circuit-ignores-precedent-and-threatens-national-security-1486748840

Is President Trump’s executive order constitutional?

February 6, 2017, in the Washington Post

Editor’s note: On Friday, U.S. District Judge James L. Robart issued a ruling temporarily halting enforcement of President Trump’s executive order barring entry to the U.S. for citizens of seven majority-Muslim countries. On Monday evening, David Rivkin and Karen Tumlin exchanged views and predictions about the legal fight over the executive order. The email discussion was moderated by Post Opinions digital editor James Downie and has been edited for style and clarity.

Karen Tumlin: Hi, James and David, looking forward to having this discussion with you both on this important topic.

The executive order has several legal problems. I would highlight two of the most serious. First, ours is a nation that was founded on the premise that individuals should be free from religious discrimination by the government. That principle is enshrined in our Constitution and prohibits the federal government from discriminating against or favoring any religious group. This executive order does both. By banning the entry of individuals with valid visas from seven majority-Muslim countries, there is no question that the executive order singles out Muslims for disfavored treatment. Equally questionable is the preference given to minority religions under the executive order for refugees. Practically, this favors the admission of Christians.

Second, in addition to this broad delegation of authority from Congress, the president has inherent, formidable constitutional authority of his own over foreign affairs and national security, with the power to control immigration being an integral part of those authorities. So, here we have two political branches that have spoken in unison on this issue, placing the president in the strongest possible legal position. Last but not least, well-established Supreme Court precedents indicate that states — like the states of Washington and Minnesota — have no equal-protection rights of their own, nor can they vindicate equal-protection rights of their citizens. The same is true about being able to challenge alleged religious discrimination. This limitation on the states’ authority to champion such claims is fundamental to our separation-of-powers architecture.

Tumlin: When looking at the legality of this executive order, we have to look back to the very clear, discriminatory intentions for the order that were laid down repeatedly on the campaign trail by then-candidate Trump to create a ban on the entry of Muslims to the United States. The text of the executive order serves to implement that shameful campaign promise, as do statements by the president and the drafters of the order since its signing. Our Constitution does not stand for this kind of governmental discrimination.

You don’t have to discriminate against every Muslim in the world to run afoul of our Constitution’s protections and human decency.

The executive order doesn’t make us safer as a country, it puts us more at risk. But don’t just take my word for it. Have a look at the declaration submitted Monday at the U.S. Court of Appeals for the 9th Circuit by a host of national security ex-officials from both sides of the aisle noting that in their “professional opinion, this Order cannot be justified on national security or foreign policy grounds.”

Rivkin: I disagree. There are a few instances that arise in the unique context of domestic equal-protection challenges to governmental actions that are facially neutral but produce substantial discriminatory impacts on groups of people, based on such suspect classifications as race, nationality, ethnic origin, etc. This doctrine has never been used in foreign affairs, both because of the tremendous judicial deference owed in this area to the two political branches and because discerning the intentions of the president is particularly difficult in the national security area, given the inherent lack of judicial competence in foreign affairs and lack of access to classified information.

 And, as a practical matter, under your logic, courts would rule differently on the constitutionality of exactly the same executive orders, suspending entry of certain types of aliens — with Obama’s order delaying the entrance of refugees from Iraq and President Ronald Reagan’s suspending the entrance of certain Cuban nationals — depending on how they felt about the subjective intentions of a given president. This cannot possibly be true.

And, to reiterate, as far as the judgments regarding whether or not this order makes us safer, such judgments are uniquely unsuited for judicial discernment and the judiciary is barred from engaging on them on the basis of the Supreme Court’s case law, known as the political question doctrine. The fact that some former national security officials challenge the policy wisdom of the order, while other national security officials — most notably those of this administration — support it, merely demonstrates that these are policy disputes that the judiciary is both ill-equipped and constitutionally barred from arbitrating.

James Downie: Karen, how would you respond to the argument that the president has the authority to enact this order?

Tumlin: The president is not king. He, too, must abide by our Constitution as well as the immigration laws duly written and passed by Congress. What the president has done here is attempt to hastily legislate by executive fiat. The result has been confusion among federal officials unsure of how to interpret or implement this presidential dictate and very real human suffering. And let’s be clear, this executive order does not only target non-U.S. citizens living abroad. It has profound consequences on U.S. citizens who can’t bring their parents in to witness the birth of a child, or on businesses that can’t send their most talented U.S.-based executives abroad for important meetings. And the order has left others in limbo overseas who may have taken a trip abroad to, for example, visit an ill relative, and unless the Washington state decision stands will not be able to return to their families and jobs in the United States because their validly issued visa vanished overnight.

Downie: David, can you expand on the argument that it’s not discriminatory against Muslims? Ilya Somin elsewhere on The Post’s site writes, “The unconstitutional motive behind Trump’s order can’t be sidestepped by pointing out that it blocks some non-Muslim refugees too. Poll taxes and literacy tests excluded a good many poor whites from the franchise, but were still clearly aimed at blacks.” What are your thoughts on that?

 Rivkin: My argument is focused on the fact that a relatively small percentage of the world’s Muslim countries are impacted by this order. Stated differently, this executive order is a singularly ineffective — in legal parlance, it would be called under-inclusive — form of a Muslim ban. Accordingly, it is not a Muslim ban at all, but a suspension of entrants from seven countries with conditions on the ground that both promote terrorism and make effective vetting impossible. By contrast, poll taxes were very effective in excluding blacks, as well as impacting many poor whites; in legal parlance, they were overly inclusive but nevertheless served their intended discriminatory purpose. This is fundamentally not the case here.

Tumlin: I would humbly submit that a more relevant lens to look at this question is in terms of recent Muslim migration to the United States. For example, 82 percent of all Muslim refugees who entered the United States in fiscal years 2014 through 2016 hailed from the seven countries. The executive order may not use the words “Muslims keep out,” but it certainly would serve to achieve that goal if allowed to stand.

Downie: In closing, how do you expect the 9th Circuit to decide on Robart’s ruling?

Rivkin: I believe that the 9th Circuit will not let Robart’s decision stand. I say this fully appreciating the fact that the 9th Circuit is the most idiosyncratic in the country and the one most often overruled by the Supreme Court. However, given the fact that the case brought by the states is so deeply flawed — they fail both standing-wise and merits-wise — I believe that the 9th Circuit will do the right thing and will rule in a matter of days. I would also expect that, because the plaintiffs in this case lack standing, the 9th Circuit would not only overturn Robart’s temporary restraining order but would dismiss the entire case without ever reaching the merits. If I am wrong and the 9th Circuit fails to do this, I have every confidence that this would be the result reached by the Supreme Court, when it became seized of that case.

Tumlin: I respectfully disagree with David on this always risky judicial crystal ball-gazing. In the 10 days since the executive order was signed, we have seen people take to the streets all across this country to protest it, lawyers like me have taken to the courts to challenge its illegality, and a diverse and stunning cross-section of Americans from every walk of life have questioned its wisdom. All because this executive order stands in sharp contrast with our legal and moral principles as a nation. I have every confidence that the 9th Circuit will let this temporary block on this harmful executive order stand.

 It is also worth mentioning that a real question exists as to the propriety of the 9th Circuit weighing in on the district court’s order at all at this time. Generally, temporary restraining orders are not appealable immediately to the higher courts.

Rivkin: In our constitutional system, the extent of political controversies, including the protests, surrounding a given issue is utterly unrelated to the analysis of legality and should have no effect on any court. And whether or not this order is inconsistent with our moral and legal traditions is a classical hortatory declaration, suitable for political debates, and is not a viable legal argument.

David B. Rivkin Jr. practices appellate and constitutional law in the District and served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Karen Tumlin is legal director for the National Immigration Law Center and the NILC Immigrant Justice Fund.

Source: https://www.washingtonpost.com/opinions/is-president-trumps-executive-order-constitutional/2017/02/06/26ee9762-ecc1-11e6-9973-c5efb7ccfb0d_story.html

Can Trump cut off funds for sanctuary cities? The Constitution says yes.

By David Rivkin and Elizabeth Price Foley

December 7, 2016, in the Los Angeles Times

But whatever one thinks about Trump’s strategy, it almost certainly would pass muster at the Supreme Court.Several cities and public universities have vowed to resist President-elect Donald Trump’s plan to deport undocumented criminals by doubling down on sanctuary policies. In response, Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars, such as Harvard’s Noah Feldman, have even claimed that such a response would be unconstitutional.  

Feldman and others point to New York v. United States (1992) and Printz v. United States (1997), in which the Supreme Court concluded that the federal government cannot conscript state or local officials to carry out federal law. The federal government must enforce its own laws, using federal personnel. So when state or local police arrest immigrants who are present in the country illegally, they are under no obligation to deport them, as deportation is the responsibility of the federal government alone. 

This “anti-commandeering” doctrine, however, doesn’t protect sanctuary cities or public universities — because it doesn’t apply when Congress merely requests information. For example, in Reno v. Condon (2000), the Court unanimously rejected an anti-commandeering challenge to the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and “did not require state officials to assist in the enforcement of federal statutes,” it was consistent with the New York and Printz cases.

It follows that, consistent with the anti-commandeering doctrine, Congress can require state, local or university police to tell federal agents when they arrest an immigrant present in the country illegally.

It’s true that cities such as Los Angeles instruct city employees not to ask about immigration status, but they may still have access to that information. Under California law, for example, driver’s licenses issued to immigrants in the country illegally contain prominent distinguishing language stating, “federal limits apply.” Indeed, Congress could specify that licenses issued to immigrants in the country illegally must include a distinguishing feature, or they won’t be accepted for federal purposes, such as TSA airport security. Congress already has enacted the Real ID Act, which mandates that driver’s licenses display certain details.

A separate constitutional doctrine, the anti-coercion doctrine, likewise won’t shield sanctuaries. This doctrine holds that while Congress may impose conditions on receipt of federal funds, it cannot coerce states into accepting those conditions.

In the 1980s, Congress passed a law withholding 5% of highway funds from any state that refused to adopt a minimum drinking age of 21. The Supreme Court, in South Dakota v. Dole (1987), upheld it. Because highway funds are expended — in part — to ensure safe travel, the court reasoned that raising the drinking age was “relevant to the federal interest in the project and the overall objectives thereof.” More significantly, withholding 5% of federal funds wasn’t coercive because while it represented a loss of $615 million dollars, it was only 0.19% of states’ total budgets.

By contrast, in NFIB v. Sebelius (2012), the Supreme Court found that Congress violated the anti-coercion doctrine. Specifically, in the Affordable Care Act, Congress withheld 100% of states’ Medicaid funding if they didn’t expand those programs. A court plurality characterized this as a coercive “gun to the head” because it involved a loss of over $233 billion dollars — more than 20% of states’ budgets.

The South Dakota and NFIB cases teach that Congress can cut off funds if the conditions imposed are relevant “to the federal interest in the project” and the threatened loss of money doesn’t amount to a “gun to the head,” defined by a substantial percentage — approaching approximately 20% — of states’ budgets.

Congress certainly could meet these standards. Many federal programs provide billions to universities and state and local law enforcement. Provided the percentage withheld didn’t approach the 20% threshold, it should be constitutional. As with the highway funds in South Dakota, these programs are designed in part to improve safety of campuses and communities. This goal would be furthered by withholding funds from cities and universities that provide sanctuary for criminals present in the country illegally. Such individuals, by definition, not only are unvetted by the federal government, but have committed crimes while here.

Whatever one’s view of the best immigration policy, it should be uniform. Some, including the Washington Post’s editorial board, have suggested that Congress should give sanctuary cities flexibility to report only those who’ve committed the most serious violent offenses. But precisely which criminals should be subject to deportation requires resolution by Congress, not each city or university.

Sanctuary policies create Balkanization on an issue with important foreign policy implications and corresponding potential for diplomatic embarrassment. As the Supreme Court affirmed in Arizona v. United States (2012), “the removal process is entrusted to the discretion of the Federal Government” because it “touch[es] on foreign relations and must be made with one voice.”

The Constitution is clear that power to determine deportation policies belongs to Congress, not states, municipalities or universities.

David Rivkin and Elizabeth Price Foley practice appellate and constitutional law in Washington, D.C. Rivkin served at the Department of Justice and the White House Counsel’s office during the Reagan and George H.W. Bush administrations. Foley is also a professor of constitutional law at Florida International University College of Law.

Source: http://www.latimes.com/opinion/op-ed/la-oe-rivkin-foley-sanctuary-city-20161207-story.html

Nevada’s Right Choice on Immigration

By DAVID B. RIVKIN JR. And LEE A. CASEY, Feb. 2, 2015 7:40 p.m. ET

A very public dispute broke out last week when Nevada Attorney General Adam Laxalt went against Gov. Brian Sandoval’s wishes and joined a lawsuit filed by 25 other states challenging President Obama’s imposition of his immigration reform policies by executive action.

Messrs. Sandoval and Laxalt are both Republicans who agree that the current immigration system is broken and that comprehensive reform is necessary. But Mr. Sandoval opposes litigation and has suggested that new immigration reform legislation is the best way to proceed.

Yet on Jan. 26 Mr. Laxalt announced that Nevada had joined the plaintiff states in Texas v. United States of America. “As Nevada’s chief legal officer,” he explained, “I am directed by Nevada’s Constitution and laws to take legal action whenever necessary ‘to protect and secure the interest of the state.’ ”

Mr. Laxalt was right to join the suit. Mr. Sandoval’s legislative path will neither solve America’s vexing immigration problems nor rein in a president who has ignored the Constitution’s limits on executive power.

Texas v. United States of America challenges the president’s use of an executive order to suspend federal immigration laws that require, among other things, deportation of undocumented immigrants and strict limits on who may lawfully work in the U.S. The Constitution requires that the president “Take care that the laws be faithfully executed,” and provides no exemption for laws with which the president disagrees.

As the Supreme Court stated in Youngstown Sheet & Tube Co. v. Sawyer (1952), ruling against President Harry Truman’s seizure of the nation’s steel industry during the Korean War, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

The president is, in other words, stuck with laws passed by Congress and signed into law by previous presidents. The reason for this is at the heart of America’s constitutional separation of powers—the power to make laws and to execute them are divided between separate branches of government, Congress and the president respectively.

The third branch—the judiciary—has the power to say what the law is, including when the president and or Congress have crossed the constitutional lines. It is only litigation before the courts that can now vindicate the most basic tenets of our constitutional system.

However desirable immigration reform might be, congressional action won’t prevent this president from ignoring provisions in a new law that he dislikes or opposes. Only a determination by the courts that he has overstepped his constitutional authority can do that. Unless the president’s ability to play lawmaker is decisively defeated in litigation, congressional legislation on any contentious public-policy issue would be inherently futile.

Nor is Mr. Laxalt obliged to follow Gov. Sandoval’s preference. Nevada law permits the governor to direct the attorney general to bring or defend an action in the courts. But as Mr. Laxalt explained, it also imposes an entirely independent obligation on the attorney general to take such action if he believes it necessary to secure the state’s interests.

All American states, including Nevada, have critical interests at stake here, both because of the burdens President Obama’s suspension of federal immigration law imposes on their state budgets and governments, but also because of their basic character as coequal sovereigns. The Constitution is a “grand bargain” among the states and the American people. That bargain includes a powerful federal government, but one that has limited powers that may be exercised only in accordance with the institutional arrangements the Constitution creates.

The separation of legislative and executive authority is among the most important limitations on federal power. It is now up to the federal courts to restore the Constitution’s balance between the president and Congress and between the federal government and the states. Mr. Laxalt made the right choice. Those state attorneys general that have yet to join Texas v. United States of America should follow his lead.

Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/david-rivkin-and-lee-casey-nevadas-right-choice-on-immigration-1422924012

Obama’s Immigration Enablers

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

Second, the OLC incorrectly concludes that the president’s plan involves case-by-case scrutiny. The OLC admits “a general policy of nonenforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.” It argues, however, that there are no “removable aliens whose removal may not be pursued under any circumstances.” And although the policy “limits the discretion of immigration officials . . . it does not eliminate that discretion entirely.”

It is absurd to assert that the theoretical possibility that a small percentage of the more than four million likely applicants may be rejected is meaningful “prosecutorial discretion.” This is illustrated by Mr. Obama’s 2012 Deferred Action for Childhood Arrivals policy. Of 521,815 applications considered on a “case-by-case” basis, only 3% have been rejected. With an approval rate of 97%, the president’s criteria are rubber-stamped. This is a categorical exemption from the law.

Third, even if Mr. Obama’s plan is accepted as case-by-case discretion, it creates a remedy—deferred deportation—for a category that Congress hasn’t allowed and the president lacks authority to create. The OLC memo lumps deferred deportation with other kinds of deportation relief, such as parole, temporary protected status and deferred enforced departure. But each of these has been specifically authorized by Congress, or—in the case of deferred enforced departure—is supported by the president’s foreign-affairs power.

While Congress has authorized deferred deportation for specific categories, lawmakers haven’t authorized it for those to whom President Obama wishes to extend it—the parents of U.S. citizens and lawful permanent residents. The OLC claims that this isn’t important because deferred deportation “has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court.” It cites the 1999 Reno v. American-Arab Anti-Discrimination Committee case.

In that case, members of the Palestinian Liberation Front claimed the Immigration and Naturalization Service’s refusal to defer their deportation constituted discrimination. The court disagreed, ruling that a recently passed statute was “clearly designed to give some measure of protection to ‘no deferred action’ decisions” and deny adjudication of such discrimination claims. The ruling merely acknowledged that Congress didn’t want federal courts hearing discrimination lawsuits based on a failure to grant deferred action. It didn’t consider or endorse the legality of deferred deportation.

The OLC next claims that Congress has “acquiesced” to deferred deportation. It cites statutes authorizing deferred deportation for battered spouses of U.S. citizens, and instances where individuals entitled to visas—such as victims of human trafficking or college students affected by Hurricane Katrina—needed more time to obtain visas or fulfill the visa’s purpose. Congress’s authorization of deferred deportation for narrow categories doesn’t allow a president to create broad new categories, particularly since his deferred deportation creates entitlement to benefits such as work permits, and because the category of aliens created by President Obama’s policy weren’t entitled to stay.

Fourth, the OLC claims that past presidents have taken similar actions, yet it fundamentally misrepresents their legal basis. The primary example is George H.W. Bush ’s 1990 Family Fairness Policy (FFP), which affected an estimated 1.5 million children and spouses of those granted amnesty by the 1986 Immigration Reform and Control Act.

The FFP, however, was consonant with existing statutes. The FFP granted not deferred deportation, but “voluntary departure” for up to one year. Voluntary departure allows deportable individuals to voluntarily depart the country, on their own dime, in lieu of being forcibly removed. Their status as “deportable” individuals never changes.

The FFP was grounded in the then-existing voluntary-departure statute, which stated, “The Attorney General may, in his discretion, permit any alien under deportation proceedings . . . to depart voluntarily from the United States at his own expense in lieu of deportation.” The FFP didn’t contradict existing law or attempt to recategorize deportable aliens.

Fifth, the OLC ignores that the new Obama policy profoundly harms the states, which bear the costs of educating and providing health care to millions of illegal immigrants now allowed to remain. The policy also injures state sovereignty.

In Arizona v. U.S., the Supreme Court ruled in 2012 that federal immigration law pre-empts much of state power over immigration. But when a president unilaterally acts, it deprives states of their police power and representation in Congress, imposing changes without democratic deliberation. While federal immigration law can pre-empt state power, there can be no pre-emption when a president exceeds his constitutional authority by rewriting the law.

The OLC’s memo endorses a view of presidential power that has never been advanced by even the boldest presidential advocates. If this view holds, future presidents can unilaterally gut tax, environmental, labor or securities laws by enforcing only those portions with which they agree. This is a dangerous precedent that cannot be allowed to stand.

Source: http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-obamas-immigration-enablers-1416872973

Mr. Rivkin is a constitutional litigator and served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at the Florida International University College of Law.

Obama vs. Congress—and the Law

The President has taken a hatchet to welfare reform, the immigration laws, and ‘No Child Left Behind.’

(published in The Wall Street Journal, July 27, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On July 12, President Obama unilaterally gutted the Clinton administration’s signature achievement—welfare reform. The 1996 welfare-reform law, while passed with strong bipartisan support, has been the bane of progressives, who have never accepted its fundamental principle that those who can work must work. Over the last year, the Obama administration also took the hatchet to the immigration laws and to the Bush-era “No Child Left Behind” statute.

These actions have two things in common. First, they were announced with much fanfare and designed to appeal to the president’s liberal base. Second, and much worse, they were implemented by suspending enforcement or waiving applications of laws Mr. Obama does not like.

The president cannot write—or rewrite—the laws. The Constitution makes Congress the legislature, and the president cannot simply ignore its decisions.

The entire system of separation of powers—which is the heart of the Constitution’s “checks and balances” designed to limit governmental power and thereby protect individual liberty—depends upon each branch of the federal government fulfilling its assigned role and respecting that of the others. Unfortunately, Mr. Obama has now made clear that he won’t respect these basic constitutional limits on his power.

Last year, for example, the administration was displeased with Congress’s failure to enact the White House-supported Dream Act, which would have legalized numerous categories of young undocumented aliens. And so, in August 2011, the administration announced it would not deport illegal aliens who had only violated the immigration laws. Henceforth, only those who had committed criminal offenses, in addition to immigration ones, would be the subject of deportation proceedings.

Mr. Obama followed this with a White House announcement in June of this year that granted effective amnesty to undocumented aliens under age 30 who had come to the United States before the age of 16. This entire group will no longer be subject to deportation proceedings and may also qualify for renewable work permits. Thus the president implemented portions of legislation he could not get through Congress on his own signature and acted in ways blatantly at odds with the existing immigration laws, which provide for no such exemptions from deportation.

Earlier this year, in February, the administration gutted the strict student testing and monitoring requirements of the 2001 “No Child Left Behind” law. The law, which passed with strong bipartisan support, is meant to make schools more accountable for their pupils’ progress. But the testing and monitoring requirements are loathed by teachers unions across the nation—a key Democratic constituency for November. Unable to convince Congress to revise key provisions of the law, the president simply authorized “waivers” from many of these requirements—including one that states establish reading and math proficiency standards for all students by 2014. But “No Child Left Behind” does not provide for such waivers.

Most recently, the administration announced that it will waive the central tenet of the Clinton welfare-reform law—the requirements that recipients work or prepare (through approved education or training) to do so. Although certain aspects of the Personal Responsibility and Work Opportunity Act are subject to waiver, the federal work requirements are not among them.

The pattern of lawlessness here would have outraged the Constitution’s Framers. It should outrage all of us—including and especially members of Congress on both sides of the party divide.

Congress makes the laws and they must be enforced. For the Constitution’s Framers, this principle was bedrock—not only the ultimate achievement of our own revolution, but of England’s Glorious Revolution a century before. King James II was deposed in 1688, in no small part, because he claimed and exercised the power to “suspend” parliament’s laws.

Congress does not have to reach back to the 17th century for a precedent. Like President Obama, President Richard M. Nixon also refused to implement federal statutes when he believed Congress was wrong. Nixon did so by refusing to spend (“impounding”) money authorized and appropriated by Congress. It responded with the Congressional Budget and Impoundment Control Act in 1974, followed by a Supreme Court decision (Train v. City of New York, 1975) overturning one of the president’s impoundments, effectively ending the practice.

The Constitution gives the president many tools, some legal and some political, to use in his daily cut and thrust with Congress over national policy and priorities. But it does not permit him to ignore the laws Congress has enacted, and to make his own rules simply because he thinks the desired policy result is the right thing to do. A president who does not understand this does not understand the constitutional requirement that he “take care that the laws be faithfully executed,” or his inaugural oath to “faithfully execute the Office of President of the United States.”

Messrs. Rivkin and Casey served in the White House and U.S. Department of Justice during the Reagan and George H.W. Bush administrations.

A version of this article appeared July 27, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: Obama vs. Congress—and the Law.

Can Obama’s imperial power grabs be stopped? Rivkin tells Lou Dobbs

Constitutional Attorney David Rivkin to debunk the president’s latest controversial move on immigration on Fox Business Network

Published on 9 January 2012

by Brent Baldwin

(OfficialWire)

WASHINGTON, D.C. (USA)
OfficialWire PR News Bureau

David Rivkin, the lawyer who designed and argued the successful multi-state challenge to ObamaCare, is turning his guns on the latest and possibly the most egregious unconstitutional power grab by the Obama administration. Watch Rivkin in action on Lou Dobbs.

David Rivkin will be interviewed on Lou Dobbs Tonight on the Fox Business Network Friday, January 13 (7 to 8 p.m. EST) regarding a recent article he co-authored for The Washington Postabout President Barack Obama’s claims that he can preempt state law whenever immigration policy “might irritate a foreign government.”

The case stems from the Arizona immigration policy of penalizing illegal immigrants, and, according to Rivkin, it boils down to an unprecedented expansion of presidential power, among others.

“This is a stunning and audacious power grab, far more expansive than the legal theories that prompted critics of President George W. Bush to argue that he established an ‘imperial presidency.’ It simply cannot be that, despite all the Constitution’s limitations on federal power and executive action, the president’s powers become absolute whenever another nation complains.”

The Supreme Court has granted swift review of this issue, and Rivkin will explain on tonight’s show what he believes about the repudiation of Obama’s latest power grab will be quickly forthcoming.

Source: http://www.officialwire.com/main.php?action=posted_news&rid=311146