Immigration advocates to Obama: Go big

House Democrats and other immigration reformers are calling on President Obama to go big when it comes to administrative changes in deportation policy.

For months, liberal reform advocates on and off Capitol Hill have urged Obama to tap his executive powers to stop deporting certain qualified groups of undocumented immigrants while waiting to see if House Republicans would take up reform legislation this year.

But in the wake of Obama's Monday Rose Garden speech vowing unilateral action, some reformers want the president to go far beyond a limited expansion of the Deferred Action for Childhood Arrivals (DACA) program, to essentially legalize the millions of undocumented immigrants who would be eligible for work permits under the bill passed by the Senate last summer.

“The administration has unquestionable legal authority to provide all those who would qualify for citizenship under the bipartisan Senate Bill affirmative status with work authorization while making immigration enforcement more just,” Richard Trumka, head of the AFL-CIO said Tuesday in a statement. "The administration should act boldly and without further delay.”

A number of House Democrats are also urging Obama to aim high. While the lawmakers are emphasizing that legislation is the preferred solution to the nation's broken immigration system, they're also encouraging the president to use “every administrative tool at his disposal to address our immigration challenge,” in the words of Rep. Steny Hoyer (D-Md.), the minority whip.

Many reform advocates are hoping a wide-ranging list of policy recommendations, submitted to the Homeland Security Department in April by leaders of the Congressional Hispanic Caucus (CHC), will guide the administration as officials weigh their next move.

Those recommendations include not only a broad expansion of DACA to include older immigrants, but also efforts to allow illegal immigrants enrolled in DACA to enlist in the military; to bar local governments from enforcing immigration law; and to permit more undocumented relatives of U.S. military members and veterans to remain in the country while they seek green cards.

“There are many options available to the president,” Rep. Raul Grijalva (D-Ariz.), head of the Congressional Progressive Caucus, said in a statement.

White House spokesman Josh Earnest suggested Tuesday that Obama is preparing to take the Democrats' advice.

“The president was pretty clear that he wants the secretary of Homeland Security and the Attorney General to cast a pretty wide net, and consider a wide range of options for doing as much as possible to address the problems,” Earnest told reporters at the White House.

The immigration debate has intensified as a wave of migrants – many of them unaccompanied minors – has recently flooded the southern border, and House Republicans have threatened to sue Obama for what they contend is a habitual abuse of executive power.

Obama on Monday argued that Republicans have an easy solution to prevent him from using his executive pen: Pass a reform bill.

“If House Republicans are really concerned about me taking too many executive actions, the best solution to that is passing bills,” he said.

The president's new-found aggressiveness on the divisive issue was immediately cheered by immigration reformers – “This is the president I voted for,” said Rep. Luis Gutierrez (D-Ill.), a frequent critic of Obama's immigration policy – but not all Democrats were on board.

Rep. Michelle Lujan Grisham (D-N.M.) said Obama's speech makes it too easy for Republicans to ignore the issue this year.

“We need to put more pressure on the Republican leadership to do the right thing and allow an up-or-down vote,” she said.

Speaker John Boehner (R-Ohio) responded to Obama's speech by amplifying his argument that Republicans simply don't trust the president to implement an immigration law in good faith.

“Until that changes, it is going to be difficult to make progress on this issue,” Boehner said.

Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, blamed Obama for both the legislative stalemate and the crisis at the southern border.

“By threatening more unilateral actions this summer while failing to address the issue of border security, President Obama will only worsen the crisis at the border and will further undermine Americans’ faith in the president’s ability to lead,” Goodlatte said.

Still, the most ardent immigration reform advocates say the Republicans' refusal to consider an immigration bill has left Obama little choice but to take steps on his own.

This should help re defunding by the House, and quotes directly from the Constitution’s pertinent parts:

The following was published early in 2011 by The Conservative Caucus Foundation.

“Repeal Through Defunding: Ending ObamaCare in the 112th Congress

Although the repeal of ObamaCare has passed the House of Representatives during the 112th Congress, it still faces roadblocks in the Senate and at the White House. It appears that ObamaCare’s opponents will be required to block implementation by refusing to provide any funding. This will raise objections from ObamaCare supporters who will insist that a Federal program, once enacted, cannot be indirectly repealed through the appropriations process. One commentator has already predicted a “Constitutional and budgetary crisis”.[1]

DEFUNDING IS A PRACTICAL OPTION

A careful examination of the Constitutional and legal questions, however, shows that the defunding approach is well within the power of Congress (and of the House alone, which bears sole responsibility for initiating appropriations bills). Both the Constitution and Congressional practice support that conclusion.

NO MONEY SHALL BE DRAWN

Article I, Section 9 of the Constitution includes the statement that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”. James Madison described this as ‘the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people”.[2]

No exceptions are provided, and the state ratification debates affirm the strict interpretation of this clause. Edmund Randolph pointed out that even the payment of lawful and recognized government debts could not take place without an appropriation, while George Nicholas declared that the House of Representatives could use its power of the purse to “put a stop to the operations of government”.[3] Both these statements have been validated in practice. St. George Tucker noted in his later commentary on the Constitution that “no claim against the United States (by whatever authority it may be established) can be paid but in consequence of a previous appropriation made by law” and the U.S. Supreme Court has continued to take this view.[4]

AUTHORIZATION WITHOUT APPROPRIATION IS INOPERATIVE

President Clinton acknowledged in 1995 that after vetoing the appropriations for some government agencies he had no choice but to close those agencies until he and Congress could reach agreement on a new appropriations bill.[5] The fact that many of those agencies had a legal authorization on the books was irrelevant without an appropriation. By vetoing the appropriation, Clinton had imposed a de facto repeal of those authorizations, though an intentionally temporary one.

ARTICLE ONE SECTION 8 ESTABLISHES BOUNDARIES

The Constitution also says, in Article I, Section 8, in the clause relating to raising and supporting armies, that “no Appropriation of Money to that use shall be for a longer term than two years.” This was included for the explicit purpose of guaranteeing that Congressional approval for a standing army would be required at least every other year.[6]

In that context, it is instructive to see how the First Congress, filled with many men who had served in the Constitutional Convention, the state ratification conventions, or both, dealt with the establishment of a standing army. Although their first act was merely to extend the existing law of the Confederation Congress, they followed up in 1790 with a new and expanded law. This “Act for Regulating the Military Establishment of the United States” included a provision that soldiers should be enlisted “for the service of the United States for the period of three years.”[7] It is impossible to believe that these men could have believed that passing such a law could overcome the provisions of Article I, Section 8. Therefore, the only possible conclusion is that the First Congress recognized that their acts were subject to de facto repeal by a future Congress if that Congress refused to appropriate the pay for soldiers with time left on their legal three-year enlistment. Congress could pass laws with only the hope, not the assurance, that they would receive essential funding for as long as they were on the books.

The actions of the Fourth Congress in 1796 also show an agreement that Congress, and especially the House, has full discretion in the appropriations process. The Senate had ratified the Jay Treaty in 1795, and the Treaty could not be carried out without appropriations by Congress. It became apparent as Congress convened that the Republicans in the House of Representatives, being opposed to the treaty, posed a serious threat to the passage of any such appropriation. President Washington, however, never even attempted to claim that the mere ratification of the treaty allowed him to spend the necessary funds, bypassing the appropriations process. Instead, during March and April of 1796, Federalists in the House lobbied constantly to win Republican support, and finally succeeded in passage on the narrow margin of 51-48.[8]

It is well worth noticing that the climactic floor speech for the Federalists, that of Fisher Ames, conceded the Constitutional point and argued that the treaty should be carried into effect on its merits. After phrasing the question as whether the treaty was bad enough to justify rejection by the House, and conceding that he would vote against appropriations for a treaty if he considered it bad enough, he then argued that the funding should be approved based on the benefits the treaty would bring to the United States.[9]

The House and Senate Rules might be cited as justification for mandatory funding, since they seem to establish a bond between the processes of authorization and appropriation. However, Congressional practice has long made this bond nothing but an ignored formality. Despite the requirement in the rules that only authorized programs may receive appropriations, Congress has continued to appropriate even when authorizations have expired. The appropriation itself is treated as a sort of de facto authorization. This has become such an accepted practice that the Congressional Budget Office is now required to issue an annual report on “Unauthorized Appropriations and Expiring Appropriations”. The report issued in January 2010 stated that “Congress has appropriated about $290 billion for fiscal year 2010 for programs and activities whose authorization of appropriations have expired”.[10] If Congress can accomplish a de facto authorization through the appropriations process, it must also have the power to bring about a de facto repeal through appropriations.

Defunding ObamaCare should be debated solely on it merits, without concern for Constitutional objections to the method. A long historical record demonstrates that the appropriations clause of the Constitution has consistently been understood to mean exactly what it says. If Congress refuses to make an appropriation, or puts restrictions on the expenditure of the money which it does appropriate, the matter is settled. If Congress is willing to repeal ObamaCare, defunding is a legitimate approach.

[1] Frum, David, Newt’s ObamaCare Shutdown Fantasy, FrumForum, April 9, 2010, http://www.frumforum.com/newts-obamacare-shutdown-fantasy.

[2] Hamilton, Alexander, Madison, James, and Jay, John, The Federalist Papers, The New American Library, 1961. pg. 359.

[3] Kaminski, John P. and Saladino, Gaspare J., eds., Documentary History of the Ratification of the U.S. Constitution and the Bill of Rights, State Historical Society of Wisconsin, Vol.X, pg. 1349 and Vol. IX, pg. 925-26.

[4] Tucker, St. George, View of the Constitution of the United States with Selected Writings, Liberty Fund, 1999, pg. 298-99. The Supreme Court, in the 1990 decision of Office of Personnel Management v. Richmond, overturned an Appeals Court ruling ordering payment, and declared that “payments of money from the Federal Treasury are limited to those authorized by statute”.

[5] Drew, Elizabeth, Showdown: The Struggle Between the Gingrich Congress and the Clinton White House, Simon & Schuster, 1996, pg. 322-341.

[6] The Federalist Papers, pg. 158.

[7] Bickford, Charlene Bangs & Viet, Helen E., Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791, Vol. V, The Johns Hopkins University Press, 1986, pg. 1274.

[8] Elkins, Stanley & McKitrick, Eric, The Age of Federalism: The Early American Republic, 1788-1800, Oxford Univerisity Press, 1993, pg. 441-49 and Cunningham, Noble E., The Jeffersonian Republicans: The Formation of a Party Organization, 1789-1801, pg. 77-85.

[9] Allen, W.B., ed., Works of Fisher Ames, Vol. II, pg. 1152 ff.

[10] Unauthorized Appropriations and Expiring Authorizations, January 2010, Congressional Budget Office, 2010, pg. 2.”

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.