Felons Not Families: A Legal Position.

Last Thursday (20/11/14) US President Barack Obama unveiled a series of executive actions on immigration that he has dubbed the "Felons Not Families" policy. This has been hugely controversial over doubts whether Obama has any legal authority whatsoever to take this type of action. After all Obama himself said in 2013 that he does not have the authority to take this action because he is neither the Emperor nor the King of the US.

As always in the US the cornerstone document that determines what laws can be passed and by whom is the US Constitution. The section that deals with immigration policy is Article 1, Section 8, Clause 4 which quite clearly states that Congress has the power; "To establish an uniform Rule of Naturalization .... throughout the United States." That means that Congress and only Congress can alter the law on immigration.

To understand the context of why the Constitution makes it quite clear that the President - as an executive power - cannot alter the law on immigration you have to look back to the US Declaration of Independence which is very much the parent document of the Constitution.The Declaration of Independence lays out the need to establish a political and legal system free from despotism and absolute tyranny. Amongst various examples of this type of tyranny and despotism it specifically lists that British King George III - as an executive power -  "endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands."

Essentially what was going on at the time is that people who were born in America - a British colony at the time - wanted to become an independent nation. To prevent this King George III was using his executive power over immigration to prevent people who wanted America to be a Republic from living in America whilst making it easier for people who wanted America to remain as a British colony to live there. In short King George was using immigration as a way to change the demographics of America in order to make sure that it supported him politically.

As Obama's immigration action will disproportionally affect people from a Hispanic background and people from a Hispanic background overwhelmingly support Obama's Democrat Party over the opposition Republican Party it seems clear that Obama's immigration action is intended to alter the demographics of the US in order to make sure it supports him politically.

In short Obama's immigration is exactly the type of despotism and tyranny that A.1, S.8(4) of the US Constitution was specifically written to prevent.

Obviously though since the Declaration of Independence and then the US Constitution were passed the US has passed other immigration laws and other Presidents have taken executive actions some of which have been challenged in the Courts. I don't really have the access to the documents nor the time to check through all this case law to see if it is relevant. However a key legal principle is that every issue is considered on its individual merits. That means that while they provide guidance a precedent is only binding if it is exactly the same as the individual issue it is being applied to.

This is unlikely to be the case because all of the examples cited in the debate so far have involved an executive order that was taken in emergency circumstances that was later upheld by Congress. For example JFK used executive action in 1961 to protect Cuban refugees fleeing the revolution. In 1975-79 Ford and Carter both offered assistance to Vietnamese refugees fleeing the revolution. In 1987 Reagan took action to protect refugees fleeing from Nicaragua's Sandinista regime. George Bush Senior's use of executive action in 1990 was even more benign. All he did was to act to close a loophole in a law that had already been passed by Congress. Therefore he was simply saving Congress the effort of repealling a poorly written law and replacing it with a new law that essentially changed just one sentence.

In contrast Obama's proposals have been placed before Congress time and time again and as Obama keeps telling us time and time again Congress has refused to pass his proposals into law. Therefore it is quite clear that Obama is not using executive action because there is not time for Congress to act but instead using executive action to defy Congress which is a quite clear violation of the Constitution.

Therefore it seems obvious that the next step is that following the signing of the executive order which Obama - as supposed Constitutional law professor - chose to do at the close of business on Friday (21/11/14) is for an injunction to be sought and granted preventing the order being acted on at least until the Supreme Court has ruled on whether the suspension of the enforcement of a law constitutes a de facto change in the law.

The Supreme Courts task here was made a lot easier last night when Obama declared during a speech in Chicago that he views his immigration to be a change in the law. As such the Supreme Court can only really tell Obama that either he doesn't know what he is talking about or strike down his immigration actions as unlawful clearing the way for him to be impeached and removed from office.

Obviously before triggering what will be a major constitutional crisis in the US the Republican Party will need time to be very sure of what they are doing. Also with there being just two years left of Obama's term of office and a Supreme Court case taking just as long the Republicans might be tempted to avoid upsetting the election cycle with an impeachment provided Obama's immigration action can be blocked by an injunction.


On the subject of Obama's seemingly utter contempt for the rule of law we have the situation in Ferguson, Missouri, US. While we are still waiting for the riots to stop and the dust to settle it is clear that billions if not tens of billions of dollars worth of damage and property destruction has taken place. Unlike a tornado, a hurricane or some other natural disaster this destruction was entirely predictible and entirely avoidable if only senior US government officials had behaved differently.

After all Eric Holder's Justice Department must have known within hours that injuries to Darren Wilson and blood in his vehicle clearly proved that this fairy tale of an innocent black man being executed by a racist police officer simply had not happened. However Holder proceeded to open a Federal investigation and intendeds to continue that investigation long after it has been well established that it is entirely without foundation.

Therefore I think that it is only right that all those who suffered loss and damage to property as a result of Holder's rabble-rousing should be fully compensated. The Federal government should cover the cost of that compensation fund because the alternative is the affected states being forced to sue the Justice Department for damages. That would pretty much put the Obama administation in a state of all out war with the nation he is supposed to be leading.

17:05 on 26/11/14 (UK date).