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Overreach? Immigration, Torture and the Shutdown Threat. By Roger Algase

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Updated - December 13, 5:20 am:

While the "unrelated" (to immigration) issues of Wall street taxpayer bailouts and campaign finance almost closed down the government on December 11 in a very tight House vote, the issue of President Obama's alleged "executive overreach" (or to use Senator Ted Cruz' inflammatory term: "illegal amnesty") is now holding up a vote in the Senate to keep the government open.

The latest news is that Senate voting to try to pass the House government funding bill will take place this weekend, but could be delayed until December 17 because of stalling tactics by Cruz and his anti-immigrant Tea Party allies.

There is also opposition to the funding bill from Senator Elizabeth Warren and other progressive Democrats in the Senate, but this seems to be a less serious obstacle to passing the omnibus government funding bill than the opposition by Cruz and other right wing Republicans over the immigration issue. America will have to stay tuned.

My original post follows:

While the Senate's chilling report alleging widespread use of torture by the CIA, and the battle to avert another government shutdown (one which would have had a devastating impact on the legal immigration system, because both the US Department of Labor and US Consular visa issuing operations would come to a standstill) have pushed a detailed discussion of President Obama's sweeping immigration executive action plans out of the headlines, both of these other issues throw an interesting light on the claim that the president "overreached" his powers by taking unilateral action regarding immigration without the approval of Congress.

More precisely, they show the extent to which the "executive overreach" argument, which initially lead to fears of a government shutdown (before cooler heads prevailed in the Republican caucus, leaving it to an unlikely alliance of left wing Democrats and Tea Party conservatives to bring the government within inches of a shutdown on December 11 over the "unrelated" - are they really unrelated? - issues of campaign finance and a Wall Street bailout), is based on the most transparent hypocrisy imaginable.

What greater abuse of executive power could there possibly be other than the use of torture, especially when surrounded by secrecy and deception as alleged in the Senate report? Yet writers such as former DOJ official John Yoo, author of the notorious Bush administration "torture memos" turned law professor, are now arguing that while the executive has the legal power to torture people, it lacks the authority to grant temporary relief from deportation to specified classes of immigrants.

In his recent Texas Law Review article, mentioned in one of my previous posts, Yoo argues that torture comes under the heading of foreign policy, including national security, over which the executive branch is given sweeping powers under the Constitution.

On the other hand, according to Yoo, immigration is concerned with domestic policy, over which Congress is given supreme Constitutional power. On its face, this argument is absurd.

If national security is purely a matter of foreign policy, while immigration is purely a domestic matter, why is the agency with primary responsibility for immigration called the "Department of Homeland Security"? Yoo's argument also ignores the "plenary power" over immigration doctrine which was developed by the Supreme Court in the 19th century (as I have discussed previously), and which was based on large part on the executive's power to conduct foreign policy, including immigration, which was frequently regulated by treaties between the US and foreign countries. The "plenary power" doctrine, which makes the "political branches" of the government, namely Congress and the executive, supreme, and recognizes broad executive power over immigration through express or implied delegation by Congress, has never been discarded or overruled by the courts.

It is simply impossible as a matter of reason, logic, or Constitutional history, to argue that the executive branch has broad power to engage in torture, that most fundamental violation of human rights and everything America stands for, while at the same time having only narrow and limited power over immigration enforcement.

Therefore, while torture (fortunately) may not be directly related to immigration (except, ironically, for victims of torture in other countries who are eligible for asylum under US law), the torture debate sheds a good deal of light on the good faith of the argument that President Obama is abusing his power by granting relief form deportation through executive action.

How much good faith is there to this argument? The answer is none at all, at least when it is made by those who are at the same time trying to defend the supposed "power" of the executive branch to use torture.


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Updated 12-13-2014 at 04:23 AM by ImmigrationLawBlogs

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