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Does Constitution Require Mass Expulsion of Immigrants By Obama? By Roger Algase

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On what may be the most important day in Barack Obama's presidency, and one of the most important in America's entire immigration history, President Obama is expected this evening (November 20) to announce a significant extension of the Deferred Action program to grant temporary protection from deportation to additional millions unauthorized immigrants Not unexpectedly, this is increasing the threats by immigration opponents to sue the president for allegedly exceeding his Constitutional powers to fever pitch.

See: Huffington Post: GOP Governors Want To Sue Obama Over Immigration Executive Action, November 19 and 20.

Ironically, but not surprisingly, in other news of the day, the same Republicans who are threatening to sue the president for exceeding his powers over immigration, are at the same time helping him maintain broad powers to conceal the full extent of the federal government's complicity in the use of torture during the Bush administration.

See Huffington Post: Senate Torture Report Talks Break Down As Administration Pushes For Redactions, November 19.

If the president has the power to engage in torture (or at least cover up its prior use by the government), something which is repugnant to every civilized society on earth and strictly forbidden by both US and international law, why does he not have the power to grant temporary humanitarian relief from the harsh penalties of deportation to immigrants who may have been living in the US for many years with the de facto, though not the legal, permission of the government, and who have parents, spouses, children or other close family members who may be US citizens, and who are neither criminals nor present any other danger to society?

Former Bush administration official John Yoo, author of the Texas Law Review article cited in my November 18 post, argued in his notorious "torture memos" that there were few, if any restrictions on the president's power to use torture, because of his broad powers over foreign affairs. However, in his law review article, he argues that immigration is primarily a domestic matter, and that the president is therefore bound by enactments of Congress and required to carry them out to the fullest extent possible, without using any discretion over the manner or extent of enforcement. Yoo states:

"Any [presidential] prerogative would not extend to the immigration decision because the President's constitutional authority should only extend to national security and foreign affairs." (91 Texas Law 781, at 812)

Putting aside the question of foreign affairs, which even he admits elsewhere in his article that immigration is closely connected with, it is curious that John Yoo, of all people, seems to argue that immigration has nothing to do with national security. Is not immigration mainly under the jurisdiction of the Department of Homeland Security (as Yoo also mentions elsewhere in his article)?

On the other hand, maybe it is better not to pursue this point too far, lest we one day see an article by Professor Yoo upholding the right to torture immigrants on national security grounds!

Having established, in his view, that immigration is primarily just one more area of domestic policy in which Congress rules supreme and in which the president is merely its servant under the Constitution, Yoo attempts to shoot down some of the justifications for broad presidential power over immigration that were put forth in Justice Kennedy's majority opinion in Arizona v. U.S. 567 U.S.___(2012).

In opposing one of the reasons given by Justice Kennedy in support of presidential power to grant relief from deportation, namely "equities", or humanitarian concerns, Yoo goes all the way back to Aristotle to find a reason for arguing that "equity" is not an excuse for what Yoo (not the Greek philosopher) calls "non-enforcement " of the immigration laws. According to Yoo, Aristotle interprets "equity" as something which by definition applies only in isolated or individual cases, not in general situations that might affect large numbers of people.

I am not an Aristotle scholar, but I do know that Aristotle supported slavery for certain "inferior" (mainly non-Athenian, as I understand it) ethnic groups. I am not aware that he ever supported mass expulsion. With all due respect, Professor Yoo might have done better to look elsewhere for a more relevant authority (and less tortured argument) in support of his contention that "equities" have no place in executive power over immigration enforcement.

To be continued in an upcoming post.

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Updated 11-20-2014 at 05:29 PM by ImmigrationLawBlogs

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