Immigration reform divides people at both ends of the political spectrum. Although there is broad national consensus to secure the border, the specifics of how to do that, what to do with illegal immigrants living in the United States now, and how to reform the immigration process elicit varied opinions. However, one thing all Americans should agree on is that legislating should be left to the legislature, not the executive branch.
After what can only be described as a shellacking of Democrats in the midterm elections, President Obama now plans to craft a new policy alone. Immigration policy may be a divisive issue among conservatives who seek to balance securing borders with securing the American dream, but this sort of unilateral executive action in creating legislative policy rightfully draws unified opposition. The president’s defense of this infringement on the separation of powers was as honest as it was anti-constitutional: “I’m going to do what I need to do.”
Unfortunately, basic civics education has often failed to defend the indispensable doctrine of the separation of powers. The Constitution clearly seeks to separate the exercise of power in three distinct branches of federal government. James Madison described this division of power as “essential to the preservation of liberty.” French political philosopher Montesquieu, when developing the theory of separation of powers, described it simply as “power checks power.”
In the grand American constitutional experiment, the Founders separated the power to make law, interpret law, and enforce law in the legislative, judicial, and executive branches. The goal was simple: Prevent the corruption of power and the erosion of human freedom by using the branches of government to check one another’s power. Interestingly, even Obama seems to acknowledge his limits, admitting that congressional action on immigration would supersede any of his own actions.
This is why conservatives of all stripes, not to mention centrists and even some liberals, have criticized Obama’s proclamation of executive action on immigration. It is no small thing to reject the constitutional structures of federal government.
And this is not the first time the president has taken such action. His past actions to direct law enforcement and immigration officials not to enforce the law resulted in tens of thousands of children showing up on the southern border, creating a humanitarian crisis.
To be sure, the president’s role in checking congressional power is equally important and, at times, necessary. The difference here, however, is that Obama seems to have no limit on his own executive power. He is not simply promulgating new law, he is willfully refusing to enforce laws passed by Congress in the past.
Without even engaging the debate over what to do about immigration, the debate over how to do it is of equal, if not greater, importance. The structure of the Constitution matters, and so does the way in which government executes its power. A free society seeks to prevent unlimited exercise of power, regardless of the merits of any particular policy.
While the nation may desire a debate on immigration, amnesty, and border security, there should be little doubt as to the lawless nature of the president’s actions.
Brandon James Smith is a lawyer who lives and works in Washington, D.C., and an adjunct professor at American University. Views expressed here are his own. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
