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Sen. Asserts Bogus Legal Claim For Defunding Executive Immig. Reform. By Roger Algase

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In a previous update to my election day post about the negative consequences to immigration law that might come from the Republican Senate takeover, I mentioned the dangers which could come from the fact that Senator Jeff Sessions (R-AL) will now become Chairman of the Senate Budget Committee. This could give him considerable power over funding for immigration programs, including enforcement.

Senator Sessions has now issued an inflammatory statement about executive action to grant relief from deportation which fully justifies his reputation as one of the most rabidly anti-immigrant members of Congress, who has been often accused of having ties to restrictionist groups.

See: America's Voice Research On Immigration Reform: Background Briefing: Senator Jeff Sessions (R-AL), May 26, 2009

In a November 10 POLITICO article, No Surrender on Immigration, Sessions writes:

"Why would any member of Congress who opposes executive amnesty [sic] provide President Obama the funds to carry it out?

We cannot surrender Congress' most powerful Constitutional tool before a single newly elected Republican is sworn in...

Consider RNC Chairman Reince Priebus' pledge to voters on executive amnesty: 'It's unconstitutional, illegal...It is un-American for a president to try to do such a thing'...

We cannot yield to open borders. We cannot let one executive edict erase the immigration laws of an entire nation."

Senator Sessions, of course, entirely overlooks the fact that broad executive power over immigration enforcement has been at the very foundation of America's entire immigration system, ever since this sytem originated with the infamous Chinese Exclusion Act of 1882 and its successors, which continued on the books until 1943. (Racially discriminatory quotas against Asian, Jewish, Italian, Eastern European and other "non-Nordic" immigrants were not abolished until 1965.)

Indeed, broad executive power over immigration enforcement, also known as Plenary Power, has been put forth as a centerpiece of immigration law (along with broad Congressional power) by anti-immigrant groups for the purpose of making it easier to exclude or deport people without interference from the Constitution or the courts.

See, Jon Feare: Plenary Power: Should Judges Control U.S. Immigration Policy? Center for Immigration Studies, February 2009. (Link not available.)

It is only when the president talks about using Plenary Power, or its modern equivalent, executive action, to refrain from deporting certain immigrants, that we suddenly hear anguished howls from immigration opponents about how the Constitution is allegedly being trampled on by "executive overreach" in immigration enforcement.

However, in the notorious Chinese exclusion law cases dating back more than 120 years, the Supreme Court in effect said that there can be no such thing as executive overreach when it comes to immigration enforcement.

It is true that these cases, which I will discuss on more detail in an upcoming comment, originated in one of the darkest periods of anti-immigrant bigotry in America's entire history. But even though the US Congress has since formally apologized for having enacted these racist exclusion laws, the Plenary Power doctrine has never been overruled, and was, in effect, recently re-affirmed by the US Supreme Court in Arizona v. U.S. (2012).

It ill behooves Senator Sessions and his cohorts to attack executive power over immigration enforcement as "illegal" or "unconstitutional" now, when it has been used to deport or exclude so many millions of people in the past, including more than 2 million people deported since President Obama took office, with the enthusiastic approval and support of immigration opponents such as Senator Sessions and so many other people, past and present, who have fought against diversity, tolerance and equality for all in America.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been helping business, employment and family-based immigrants obtain successful results for more than 30 years. His email address is

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Updated 11-13-2014 at 03:56 AM by ImmigrationLawBlogs

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  1. Eaglesglen's Avatar
    I read you claim "broad executive power" while it is illegal for American citizens to pay taxes to participate in breaking the law. As such all this "broad executive power" spent as foreign aid to aid illegal aliens to break immigration laws is just a debt of all participating levels of government. $ trillions.
  2. ImmigrationLawBlogs's Avatar
    I would like to thank Eaglesglen for the comment. I would be glad to try to respond if the comment was more intelligible.

    Roger Algase
  3. ILWlurker's Avatar
    senator Session's claim is not at all "bogus." The Constitution is unambiguous. No funds can be spent without an appropriation. Not funding a program may be wise or foolish. But it would be certainly valid. And if the President directing that money be spent contrary to law, that would be a criminal offense. Cf. Anti deficiency Act.
  4. ImmigrationLawBlogs's Avatar
    Regardless of whether or not a particular program gets funded or not, the executive branch has broad administrative power about whom to deport and not to deport.

    That power does not depend on funding, but is inherent in the powers of the political branches of the government to control immigration, according to the 19th century Supreme Court cases I have been discussing and the large body of law which has developed since based on those three cases.

    Only diehard bigots such as Sen. Sessions and his ilk think that the government can ever possibly deport 11 million people. Everyone else on both sides realizes that the executive has to pick and choose whom to deport, and that for every "illegal" who is deported, at least 20 are going to remain in this country anyway.

    Of course, there is always "self-deportation". How well did that work for the Republicans in 2012? How well will it work in 2016 for this exclusionist, hybris-driven party of older white men?

    Roger Algase
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