The Supreme Court has ruled on the immigration case of Texas v U.S. It was a split, four to four decision. It was the correct decision.

This was the best of all possible decisions. It means that the decision of the Fifth Circuit Court of Appeals stands. Had Justice Scalia lived the law would have been struck down. Had it gone the other way it would have supported a significant extension of the president’s power. Both results would be troubling as a matter of law and the separations of powers. This issue is better left to the future.

The president has to comply with the law. The argument for President Obama’s decision was that it was prosecutorial discretion. I would argue that that’s a stretch. It’s one thing to prioritize the removal of criminal aliens before those with no criminal issues and have family here; but this went a significant step further.

President Obama should have sought legislation or complied with the Administrative Procedure Act. He did neither of these things. As a former instructor of Constitutional Law he must have known better.

Those who support his action are result oriented. They like the result so they support any executive power in furtherance of the desired action. These same people would yell bloody murder if a future president relies on that claim of power to target Muslims for deportation. The authority to do one or the other are not that much different.

This is a separation of powers issue. The proper way to implement a policy like this is either a congressional act or an administrative one. There is law for this. President Obama did neither.

The Supreme Court made the correct decision here. Had they upheld DAPA, it would grant powers to the president that would greatly expand his powers. You may want it when he does what you want, but you would have a very different opinion if the action were against your desires. One person, even the president should not have the power to change the law. If the court had knocked it down it would restrict presidential powers in ways we might not want and can’t imagine right now. In the case of a real emergency the president should have expanded powers. This was not the case.

Doesn’t the president understand the law? He was a constitutional professor in law school. He should have known better. Everyone seems to be result oriented. That want what they want, but in America the system is very important. It is the system that keeps America, America. That system is what the constitution is all about. We have procedures and those procedures diffuse power and make dictatorship difficult. The system might not be perfect but it works better than most. I think this is a good thing and even a small step to erode this separation of powers is a mistake.

Also; let’s call DAPA it what it is; an amnesty. If you grant these amnesties you encourage millions of people to come here or stay here illegally. That’s not good. We are a nation of laws, not whims. It’s a necessary and proper function of governments to control their own borders. These orders undermine that effort. We can’t have a legal system that’s meaningless.

If the president pardoned millions of criminals there would be an outcry. If he forgave all debtors our financial system would collapse.

What is lacking in the immigration community is a debate about how to make rational laws that are sustainable, enforceable and protect American workers at the same time as allowing us to compete in the international economy. This debate is not happening. This is no easy task and good people can disagree on the details but there are some things we should agree on. Laws should make sense, be enforceable and be enforced. Those charged with the enforcement of our laws should do so fairly and intentionally. Laws should protect our country physically, economically and I would argue culturally.

We live in a fast food-sound-bite world where even our professional immigration community wants only simple solutions. If the medical community took that approach life expectancy would be halved.

Some things are better left ambiguous. The president has to be accountable to our laws yet in a real emergency he needs some flexibility. By President Obama issuing this order without following lawful procedures he might have upset the legal boundaries defining presidential powers. He should have known better. I believe the constitution and good sense were served by this decision. It’s now up to the next president.

Reprinted with permission.

About The Author

Harry DeMell Harry DeMell has been practicing law in the areas of visa, immigration and nationality since 1977. He is a graduate of New York Law School. Mr. DeMell is an active member of the American Immigration Lawyers Association (AILA). He has been a member of the AILA's annual planning committee, participated in their lobbying efforts, and is a mentor to other members. Mr. DeMell has also chaired committees for the Nassau County Bar Association and the Brooklyn Bar Association. He is a frequent speaker and a writer on important visa and immigration issues.

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