National Review Online

The Nullifier-in-Chief

The border crisis is government without consent of the governed, brought to us by President Obama.

Senior Fellow and Director, Center for American Common Culture
U.S. President Barack Obama at the Ronald Regan Building and International Trade Center, June 25, 2014 in Washington, DC. (Mark Wilson/Getty Images)
U.S. President Barack Obama at the Ronald Regan Building and International Trade Center, June 25, 2014 in Washington, DC. (Mark Wilson/Getty Images)

‘Government by consent of the governed” is under attack. The crisis on our southern border tells us that American immigration policy is not decided by the American people through our constitutional process but by foreign criminal organizations, foreign citizens who pay those organizations to transport illegal immigrants, and foreign governments that permit (voluntarily or involuntarily) the transportation of illegal immigrants through their territory.

Not only is immigration policy determined outside of American constitutional democracy, it occurs without the consent of the governed. On the first page, of the first paragraph, of the first Federalist paper, Alexander Hamilton explains the purpose of the American experiment in self-government. It is to “decide the important question” of whether people are capable of “establishing good government from reflection and choice” or whether “societies of men” are “forever destined to depend” upon “accident and force.” In contemporary America, “We the People” do not determine our immigration policy through “reflection and choice”; instead, as Hamilton feared, it is determined for us by “accident” and “force.”

Shortly before the 2012 election, President Obama unilaterally declared an amnesty for those illegal immigrants brought to the U.S. under the age of 16, after Congress had explicitly rejected his proposal. This executive ukase DACA (Deferred Action for Childhood Arrivals) has encouraged a massive new influx of illegal immigration from Central America, according to the migrants themselves. Official U.S. Border Patrol statistics reveal that about 22 percent of the illegal immigrants are “unaccompanied alien children”; the other 78 percent represent family units and adults. The Pew Research Center reports that 84 percent of the children are teenagers. Representative Michael McCaul (R., Texas), chairman of the House Homeland Security Committee, stated: “About 80 percent, though, of these so-called children are about 16 to 17 years old, mostly male. That, from a security standpoint, greatly concerns me.”

Today, the Obama administration (again without congressional approval) promises another — but much more massive — amnesty for around 5 million to 6 million people, about half of all illegal immigrants in the country. The original DACA amnesty (of approximately 600,000) was merely a “down payment,” Representative Luis Gutierrez (D., Ill.) told a National Council of La Raza conference. Obama, Gutierrez contends, has promised to expand the amnesty by a factor of ten.

Senator Jeff Sessions (R., Ala.) declared that Obama’s proposed tenfold increase in amnesty “threatens the foundations of our constitutional republic.” It essentially constitutes not only the nullification of the Immigration and Nationality Act but also, Sessions says, represents “executive nullification” of our borders themselves, thus “creating the very open-borders policy explicitly rejected by Congress and the people.” Unfortunately, in the sixth year of the Obama presidency, it has become necessary to explain to our fellow citizens that the Constitution does not give the executive the right to nullify acts of Congress.

House Democratic leader Nancy Pelosi explicitly embraces the elimination of America’s borders, declaring, “We are all Americans — north and south — in this hemisphere.” In Texas, looking across the Rio Grande Valley, Pelosi stated, “This is a community with a border running through it.” Other Democrats such as Texas representative Henry Cuellar disagree. Cuellar makes a clear distinction between his Mexican-American community in Texas (which supports border enforcement) and communities across the Rio Grande, in Mexico.

Many Democrats, however, appear to be closer to the Pelosi position. Representative John Lewis (D., Ga.) tweeted: “We are all connected. We can’t just build a wall or a fence and say no more. This is America. Our doors are open.”

Fair enough. If Pelosi and Lewis wish to propose changes in immigration policy that would establish by law that “our doors are open,” the issue could then be debated democratically, and a policy decision could be made from “reflection and choice” to either adopt or reject the open-borders position. (Pelosi and Lewis might even obtain bipartisan support from the Wall Street Journal editorial page, which before 9/11 ran the same editorial every Fourth of July arguing for a constitutional amendment declaring: “There shall be open borders.”)

But the proponents of open borders and the nullification of our immigration laws are not asking for, nor are they very likely expecting, the “consent of the governed.” Instead, they are planning to use what Pelosi herself called a “humanitarian opportunity” to establish their immigration agenda not “from reflection and choice,” but through circumstances that they allege are beyond our control, the “accident” of mass migration.

Of course, the Obama administration claims that, in its handling of the child migrants, it is following the law. It maintains that its hands are tied by the 2008 Wilberforce anti-trafficking legislation, which requires that minors who have been illegally trafficked from Central America be allowed to remain in the U.S. until a lengthy legal process (possibly lasting years) is completed, to see if they qualify for asylum. Some well-meaning legislators including Senator John Cornyn (R., Texas), Representative Cuellar, and the House Republican leadership appear to have swallowed the canard that the 2008 anti-trafficking law forbids the timely and expedited removal of illegal-immigrant minors.

However, there is little evidence that the recent illegal immigrants from Central American have been victims of trafficking against their will. Instead, family members have paid smugglers to voluntarily bring their relatives or themselves to the United States. Trafficking and smuggling are two entirely different crimes. Immigration and Customs Enforcement makes a clear distinction between victims of coercive trafficking (e.g., sex trafficking) and voluntary participation in smuggling operations.

Furthermore, the Wilberforce Act states that application of the law can be limited in “exceptional circumstances.” The sponsor of the Wilberforce legislation, Senator Dianne Feinstein (D., Calif.), noted that the “exceptional circumstances” provision could be used by the administration. Feinstein stated, “That law already provides the administration with flexibility . . . in times of crisis.”

In other words, the 2008 anti-trafficking law does not prevent the quick deportation of the latest group of illegal immigrants. This is a bogus excuse used by the Obama administration that many Republicans are accepting as valid. The problem is not the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008; the problem is the lawless policies of the nullifier-in-chief at 1600 Pennsylvania Avenue.

Fortunately, some in Congress are aware of the chief obstacle to border enforcement. Senator Ted Cruz (R., Texas) and Representative Marsha Blackburn (R., Tenn.), backed by Senator Sessions, have introduced legislation to prohibit federal funds from being used for any future DACA-style executive amnesties. Cruz-Blackburn, unlike Cornyn-Cuellar, gets to the heart of the border crisis — Obama’s promise of future amnesty.

Representative John Fleming (R., La.) declared that the House should not consider any legislation until three things happen: (1) Obama ends the DACA program, (2) Obama uses the “exceptional circumstances” provision in the 2008 law to deport illegal aliens, and (3) Obama sends the National Guard to the entire U.S. southern border. The entire Texas Republican congressional delegation of 24 congressmen and two senators sent Obama a letter stating: “Mr. President, you have the authority to stop the surge of illegal entries by immigrant minors today.”

Liberal George Washington University law professor Jonathan Turley (who voted for Obama) has become a leading scholarly critic of this administration’s unconstitutional executive actions. Professor Turley told the House Rules Committee, “What we’re witnessing today is one of the greatest crises that members of this body will face. . . . It has reached a constitutional tipping point that threatens a fundamental change in how our country is governed.” Indeed, government without the consent of the governed constitutes a major change in how our constitutional republic is governed and answers the question posed by Alexander Hamilton in Federalist No. 1 in the negative.