The following piece by Andrew C. McCarthy has had me - literally - sick
to my stomach with dread since Friday night - when I first read it.
While I'm not totally on-board with McCarthy's analysis,
I'm worried enough that... well... literally... my stomach has been
"off" since first reading the piece last night!
(Geezus... I'm repeating myself!)
Anyway... it's long... but stick with me. PLEASE stick
with me!
* * *
* * *
There is high anxiety over President Obama’s impending
unilateral amnesty order for millions of illegal aliens. How many millions? The
estimates vary. On the low end, three to eight million ... On the high end, as
many as nine to thirty-four million, factoring in likely categorical expansions
of amnesty and their ramifications over the next several years.
The anxiety stems from a remorseless truth that no one —
most especially Mr. Obama’s most ardent detractors — wants to confront. It is
the truth I have addressed (to much groaning and teeth-gnashing) in "Faithless Execution," my recent book on presidential lawlessness.
It is this: The nation overwhelmingly objects to Obama’s
immigration lawlessness, but it has no stomach for the only effective counter
to it — the plausible threat of impeachment.
* DOES ANYONE... ANYONE AT ALL... BELIEVE MCCARTHY IS
WRONG IN THIS?
* I DON'T JUST "FEAR" HE'S CORRECT; I KNOW HE'S
CORRECT!
To hear the demagogue-in-chief tell it, the controversy
over how to deal with the approximately 12 million illegal aliens currently in
the U.S. is a Manichean debate between enlightened humanitarians and vulgar
xenophobes. (To be fair to the president, he is far from alone in peddling this
smear.) But objections to Obama’s reckless immigration policies — indeed, to
his policies in general, as this week’s historic election reaffirmed — cut
across party and philosophical lines.
On immigration, the president has managed to unite much
of the country - against him!
Nevertheless, Obama made clear again this week that he
intends to push ahead with massive amnesty by executive order. Further
infuriating the public with his cynicism, he has strategically but quite openly
delayed his directive until after the election, as if to say, “The rubes are
too stupid to grasp what I’m doing even when I make no secret of it!”
As Faithless Execution recounts, the delegates at the
1787 Philadelphia convention included impeachment in the Constitution because
they believed it to be “indispensable” (as Madison put it) to preventing the
abuse of executive power. Congressional authority to remove a president would
be a decisive check. Still, the Framers reckoned it would rarely be invoked.
To turn back most instances of executive overreach, less
drastic remedies would do the trick. The ballot box, for one: The Framers
high-mindedly assumed that an imperious, corrupt, or incompetent candidate
would not be elected, much less re-elected.
* MCCARTHY OVER-SIMPLIFIES... BUT ASIDE FROM THAT THE
LOGIC OF HIS BASIC ANALYSIS REMAINS CORRECT. (THE AMERICA WE LIVE IN TODAY...
THE AMERICAN PEOPLE WE ARE TODAY... VERY DIFFERENT FROM THE AMERICA OF OUR
FOUNDERS.)
In addition, the power of the purse would enable Congress
to cut off the funds a president would need to carry out reckless or lawless
enterprises; and requiring Senate approval of presidential appointments would
give lawmakers additional leverage to bend the president into compliance with
the law and the public will.
* IN THEORY. BUT THIS MEANS NEVER ALLOWING MEN AND WOMEN
OF SUSPECT INTEGRITY TO RISE TO THE TOP APPOINTED RANKS OF THE EXECUTIVE
BRANCH. OBVIOUSLY SCUMBAGS ARE APPOINTED - AND CONFIRMED - TO THE HIGHEST
OFFICES IN THE LAND ON A REGULAR BASIS IN MODERN DAY AMERICA.
* FOLKS... THINK OF THE OLD LEGAL CLICHÉ THAT A GOOD
PROSECUTOR CAN GET A GRAND JURY TO INDICT A HAM SANDWICH. WELL... IT DIDN'T
ALWAYS USED TO BE THAT WAY. THE PEOPLE HAVE CHANGED. DEVOLVED. AND THUS THE HAM
SANDWICH CLICHÉ. SO TOO WITH THE CHECKS AND BALANCES OUR FOUNDERS PUT INTO OUR
CONSTITUTION. THEY ONLY WORK WHEN "WE THE PEOPLE" GIVE A DAMN AND
WHEN THE AVERAGE ELECTED OFFICIAL IS A BRIGHT, KNOWLEDGABLE PERSON OF
INTEGRITY. (DOES THAT SOUND LIKE TODAY'S AVERAGE POLITICIAN?)
But here’s [another] problem: Obama has no more elections
to worry about; and, other than impeachment, the rest of the arsenal designed
by the Framers is impotent when it comes to most of his immigration scheme.
That scheme implicates three closely related but
importantly distinct considerations: the lawless status of the aliens in
question; non-enforcement of the immigration laws against them; and the
conferral of legal status on them. On the first two, the president’s power to
forgive law-breaking and refrain from law-enforcement is plenary. The abuse of
these powers is essentially irresistible . . . except by impeachment. As for
the third consideration, even though the president has no direct power to
confer legal status or benefits (e.g., work permits) on aliens, that technical
deficiency could be overcome by the abusive exploitation of the aforementioned
powers he undeniably has.
* FOLKS... THIS ARTICLE HAS QUITE A FEW
"TEXTBOOK" QUALITIES. DON'T LET THAT THROW YOU. JUST READ AND RE-READ
AS NECESSARY. ASK QUESTIONS IF YOU HAVE THEM! (I'LL DO MY BEST TO ANSWER THEM.)
I acknowledge in Faithless Execution...
* SOUNDS LIKE A BOOK WE SHOULD ALL READ... EITHER BUY OR
BORROW FROM THE LIBRARY!
...that to refrain from invoking impeachment as the
credible threat the Framers intended it to be is a rational political choice.
My point is that it is a choice fraught with consequences. We have to face
those consequences. We don’t get to avoid them by being reasonable, moderate
people who recoil from the I-word. Nor, in the matter of illegal immigration,
is there any funding cut or loopy congressional lawsuit that can dissuade this
president. There is either a credible threat of impeachment or a
transformational mass-amnesty. That’s it.
* THERE IS EITHER A CREDIBLE THREAT OF IMPEACHMENT OR A
TRANSFORMATIONAL MASS-AMNESTY. THAT'S IT.
The public debate over Obama’s anticipated amnesty
proclamation has wrongly focused on executive orders. ... It is a red herring.
There is nothing wrong in principle with an executive
order — no more than there is with a statute. Congressional laws are
problematic only when they exceed Congress’s powers in violation of the
Constitution. Same with executive orders: The president’s powers are broad, the
executive branch through which he exercises them is extensive, and there is
consequently nothing improper in his issuance of executive orders to manage the
conduct of legitimate executive functions — just as there is nothing invalid in
Congress’s enactment of statutes consistent with its capacious constitutional
authorities or a court’s issuing rulings within its proper jurisdiction.
* EXACTLY!
Executive orders are offensive only when the president
employs them to usurp the powers of the other branches — in particular, the
legislative authority of Congress. If the president issued an executive order
directing the IRS to collect taxes on a rate-schedule he unilaterally
prescribed, that would be a serious violation of law.
With that backdrop, let’s go back to our three
considerations in the immigration context.
* DOES ANYONE HAVE ANY QUESTIONS REGARDING THE DIFFERENCE
BETWEEN A LEGITIMATE AND ILLEGITIMATE EXECUTIVE ORDER? (IF SO... ASK... AND
I'LL DO MY BEST TO EXPLAIN.)
The Constitution vests the president with “Power to grant
Reprieves and Pardons for Offenses against the United States.” It is an awesome
power — wholly unreviewable and nearly limitless — although one explicit limit
is crucial, and we’ll get to it in due course.
Any offense against federal law is subject to pardon, and
the Supreme Court has held since the Civil War that pardons remove “any of the
penalties and disabilities” that would flow from a conviction.
* NOTE: I'D NEED TO KNOW MORE ABOUT THE CASE(S) AND
CIRCUMSTANCES BEFORE COMING DOWN FIRMLY WITH A "YEA" OR
"NAY" CONCERNING WHETHER I ACKNOWLEDGE THIS POST-CIVIL WAR ADDENDUM.
In fact, nothing in the Constitution prevents a president
from pardoning his own law-breaking.
* FOLKS... BELIEVE IT OR NOT... THIS IS MAINSTREAM
JUDICIAL PRINCIPAL! AGAIN... I REALLY NEED TO LOOK INTO THE LOGIC, HISTORY, AND
CASE LAW BEHIND THE BELIEF THAT JUST BECAUSE NO WORDS PREVENT THE PRESIDENT
FROM PARDONING HIMSELF THAT HE'S ALLOWED TO... (I MEAN... IT JUST DOESN'T MAKE
INTUITIVE SENSE - DOES IT?). IN ANY CASE.. CONTINUING...
The pardon power does not apply prospectively - the
president may not license future law-breaking - but once the law has been
broken, the president can pardon the offense; there is no need for an
investigation to have occurred, much less a prosecution or conviction.
Pardons, moreover, need neither be individualized nor
actually sought by the person to be pardoned. As George Mason law professor
James Pfiffner recounts in the Heritage Foundation’s excellent Guide to The
Constitution, President Washington granted a blanket amnesty to collaborators
in the Whiskey Rebellion; Presidents Lincoln and Johnson pardoned
pro-Confederacy seditionists. On his first day in office in 1977, President
Carter fulfilled a campaign promise by pardoning hundreds of thousands of
Vietnam draft evaders.
* I DON'T LIKE IT, FOLKS... BUT IT IS WHAT IT IS. (AND IT
STARTED WITH WASHINGTON!)
It is occasionally claimed that illegal immigration is
beyond the pardon power because it is “civil” wrong not a criminal offense.
This contention is largely incorrect...
* I'M HOPING HE'S WRONG ON THIS. (I FEAR HE'S NOT,
HOWEVER.) READ ON...
It is certainly true that an alien’s being unlawfully
present in the United States — for example, overstaying a visa or remaining
here after illegally entering — is a civil violation, not a criminal one, but...
* BUT...
Illegal entry into the United States is a criminal
offense, albeit a misdemeanor. Reentry after deportation is a felony. And
illegal aliens often commit various crimes to sustain their unlawful presence
in our country.
* IN OTHER WORDS, IT'S BOTH A CIVIL AND CRIMINAL OFFENSE.
The Constitution, in any event, enables a president to
pardon federal “Offenses” — it does not say criminal offenses. While it is a
reasonable deduction that the Framers’ use of the word “offense” was meant to
imply crimes, not civil wrongs, why should we assume that federal courts now
stacked with Obama-appointed judges would see it that way? Why should the word
offense be any less “organic” than, say, the term equal protection of the laws?
Besides, the point of a blanket pardon would not be to confer lawful status on
the aliens, something the president has no power to do. The point, as we shall
see, would be to pave the way for the courts to finish the job.
* YEAH... I'M CONFUSED TOO! (JUST IN CASE YOU WERE
WONDERING!) MCCARTHY JUST NOTED THAT THE POINT OF A BLANKET PARDON WOULD NOT BE
TO CONFER LAWFUL STATUS ON THE ALIENS, SOMETHING THE PRESIDENT HAS NO POWER TO
DO. WELL IF THAT'S THE CASE WHY ARE WE TALKING ABOUT PARDONS... WHAT WOULD A
PARDON ACCOMPLISH THAT THE NEXT PRESIDENT OR CONGRESS COULDN'T DO VIA
LEGISLATION REQUIRING "DETAINMENT" (NOT ARREST!) AND DEPORTATION (NOT
PUNISHMENT!) OF ALL THOSE PREVIOUSLY "PARDONED?"
* LET'S KEEP ON READING TO FIND OUT. (NOTE: MCCARTHY DID
ADD: "THE POINT, AS WE SHALL SEE, WOULD BE TO PAVE THE WAY FOR THE COURTS
TO FINISH THE JOB.")
Thus, fully within his constitutional authority,
President Obama could, right this minute and without any congressional
approval, pardon every illegal alien in the United States — indeed, every
illegal alien anywhere who has been deported after violating federal law. He
could do it by executive order and, while outrageous and condemnable, it would
indisputably be within his Article II power.
* BUT AGAIN... SO WHAT? A PARDON WOULD TAKE PENALTIES -
PENALTIES OF A CONVICTION - OFF THE TABLE, BUT IT WOULDN'T MAKE THESE PEOPLE CITIZENS
AND THUS... WOULDN'T THIS PUT US RIGHT BACK ON SQUARE ONE...???
(*SCRATCHING MY HEAD*)
As I explain in Faithless Execution, while the
Constitution grants much raw power to the president, it also constrains its
exercise by placing limits on the legitimate uses of executive authority. A
textbook example of illegitimate exercise of a legitimate power is Obama’s
abuse of prosecutorial discretion.
Prosecution is an awesome executive power. The Framers
realized that, throughout history, the joinder in a single official or
governing body of the powers to make law and to prosecute was the road to
tyranny.
So they took pains to separate legislative and
prosecutorial authority.
The executive branch was given plenary authority over
federal law-enforcement: It is entirely up to the president and his Justice
Department subordinates to decide what offenses and offenders will be
investigated and prosecuted.
* ON AN INDIVIDUAL BASIS...
* UTILIZING A PLAUSIBLE METRIC JUSTIFYING WITHIN THE
CONTEXT OF THE WHOLE THE DECISIONS CONCERNING THE PARTS.
* FOLKS... THIS IS QUITE A DIFFERENT MATTER FROM SIMPLY
SAYING "WE DON'T LIKE THESE LAWS SO WE REFUSE TO ENFORCE THEM."
Congress can try to pressure and prod, but it has no
ability to coerce the Justice Department to enforce laws.
* SURE IT CAN! IT CAN IMPEACH! (AND THEN CONVICT AND
REMOVE FROM OFFICE!) IT CAN ALSO "NUDGE" USING THE POWER OF THE
PURSE.
Pre-Obama, prosecutorial discretion was understood as an
unremarkable resource-allocation doctrine specific to the criminal law.
Enforcement resources are finite. It is neither possible nor desirable to
prosecute every single violation of law. Therefore, policymakers, prosecutors,
and police must exercise judgment about which violations merit attention and
which ones can be overlooked.
(*NOD*)
Mind you, the overlooking does not excuse the
law-breaking; it is simply a concession to reality — there are more pressing
threats to society than pot-smoking, petty fraud, etc.
* AND EVEN WITH THIS EXAMPLE, WHILE IT'S CERTAIN
PERMISSIBLE FOR THE POLICE (OR DISTRICT ATTORNEYS OFFICE) TO PRIORITIZE... IT
WOULD BE (SHOULD BE, AT LEAST) IMPERMISSIBLE TO SIMPLY ANNOUNCE THAT CERTAIN
LAWS NEVER TO BE ENFORCED - AND IN FACT WERE TO SPECIFICALLY BE IGNORE BY THE
AUTHORITIES.
Obama, however, has contorted prosecutorial discretion
into a license to ignore, “waive,” rewrite, and otherwise violate congressional
statutes — including laws such as the Affordable Care Act that are far afield
from criminal-law enforcement.
* EXACTLY!
In sum, “prosecutorial discretion” has become the
camouflage for Obama’s usurpation of the powers to write and conclusively
interpret the law — powers the Constitution vests in Congress and the courts.
* EXACTLY...
Faithless Execution outlines a litany of
Obama-administration directives that the immigration laws go unenforced. In
combination, they already amount to a large-scale amnesty. This, like abuse of
the pardon power, can rightly be described as outrageous and condemnable. But,
once again, such executive orders are indisputably within the president’s
Article II power in the sense that neither Congress nor the courts can compel
him to enforce the law.
* I'M NOT SO SURE ABOUT THAT. FOR EXAMPLE... SAY BOTH
HOUSES OF CONGRESS WERE TO PASS LEGISLATION (PASS WITH MARGINS PRECLUDING A
PRESIDENTIAL VETO AND WITHIN A TIME-FRAME PRECLUDING A PRESIDENTIAL
POCKET-VETO) DIRECTLY ORDERING ALL ARMS OF THE FEDERAL GOVERNMENT TO ENFORCE
FEDERAL IMMIGRATION LAW AS WRITTEN AND TO DISREGARD PRESIDENTIAL EXECUTIVE
ORDERS WHICH VIOLATED THE TERMS AND SPIRIT OF SAID
"RE-LEGISLATION"... WELL... WHAT WOULD THEN HAPPEN IS ANYONE'S GUESS.
ULTIMATELY THE MILITARY WOULD DECIDE - PERHAPS AFTER HANDING CONGRESSIONAL
LEADERS AN ULTIMATUM THAT EITHER THEY IMPEACH, CONVICT, AND REMOVED THE
PRESIDENT FROM POWER WITHIN 30 DAYS OR ELSE THE MILITARY WOULD ASSUME PRESIDENTIAL
AUTHORITY TO "RULE" BY EXECUTIVE ORDER IS THE WILL OF CONGRESS.
Under the Constitution, the power to determine the
qualifications for American citizenship is legislative.
* YEP!
Obviously, Congress’s prescriptions must be signed by the
president to become law (unless lawmakers have the numbers to override a veto).
* TRUE...
The president, however, has absolutely no authority to
confer legal status or positive benefits (e.g., work permits) on aliens who are
in the United States illegally.
* ALSO TRUE!
If the president attempts to do this by executive order —
and, as Faithless Execution recounts, Obama has already done it, albeit on
smaller scales than what is now being contemplated — that would patently exceed
his authority, in violation of both the Constitution and statutory law.
* OBVIOUSLY...
* BUT THE QUESTION IS... HOW MANY DEMOCRATS (OR
REPUBLICANS FOR THAT MATTER) GIVE A DAMN ABOUT WHAT THE CONSTITUTION ALLOWS OR
DOESN'T ALLOW? NOT MANY. NOT MANY AT ALL.
Let’s say Obama pardoned some millions of illegal aliens.
The effect of a pardon is to expunge a violation of the law and its attendant
effects. In the eyes of the law, it is as if the offense never happened.
* TRUE. BUT... ONE MILLISECOND AFTER THE ILLEGAL ALIEN
HAS BEEN PARDONED FOR HIS PAST VIOLATIONS OF CIVIL AND CRIMINAL LAW... ASSUMING
THE ALIEN IS STILL ON U.S. SOIL... A NEW VIOLATION OF CIVIL AND CRIMINAL LAW IS
BEING COMMITTED.
(*SHRUG*)
* THINK OF THE PARDON AS CONFESSION AND ABSOLUTION IN THE
CATHOLIC CHURCH. IF THE MOMENT THE "ABSOLVED" LEAVES THE CONFESSIONAL
HE OR SHE BEGINS SINNING AGAIN... WELL... THESE WOULD BE NEW SINS!
Well, the legal and moral case against conferring legal
status on illegal aliens is that doing so would excuse their law-breaking,
encourage more law-breaking, and give the lawbreakers an unfair preference over
aliens who have tried to immigrate lawfully. But a pardon would thrust us into
a legal fiction in which we’d have to pretend that the aliens had never broken
our immigration laws in the first place. What, then, would remain of the
rationale for complaining about the preference given law-breakers over
law-abiding aliens? Or for continuing to saddle the aliens with illegal status?
Anyone want to bet me on how the nearly 400 judges Obama will have put on the
federal bench by 2017 would come out on those questions?
* MCCARTHY LOSES ME HERE. MY ASIDES MAKE MORE SENSE TO ME
THAN HIS DO.
(*GUFFAW*)
If the president refuses to enforce the immigration laws
and grants something close to a blanket amnesty, we will be on an inexorable
course toward citizenship — and, crucially, voting rights — for millions of
illegal aliens, also known as Democrats waiting to happen. It is the Left’s
dream of a permanent, unassimilated, post-American governing majority.
* GRANTED... THAT IS THE DEMOCRATIC DREAM; BUT AS FOR
THIS "INEXORABLE COURSE"... NOT NECESSARILY... FOR THE REASONS I'VE
PREVIOUSLY NOTED!
Impeachment is a political remedy, not a legal one. It is
about the removal of political power because of breaches of the public trust,
not legal prosecution and punishment. Indeed, the Framers considered narrowing
the pardon power to prevent the president from granting amnesty for his own
lawlessness; they opted against it precisely because they believed the specter
of impeachment would be sufficient disincentive.
* NO... YOU'RE NOT IMAGINING WHAT YOU JUST READ. YES...
IT'S MAINSTREAM LEGAL DOCTRINE THAT PRESIDENTIAL PARDON POWER EXTENDS TO
SELF-PARDON. I FIND THIS A RIDICULOUS CONCEPT. THAT SAID... I'D LOVE TO HEAR
THE ARGUMENTS SUPPORTING THE CLAIM, PARTICULARLY HISTORICAL SUPPORTING EVIDENCE.
As we’ve seen, the president’s pardon and prosecutorial
powers are formidable. They do not, however, exist in a vacuum. They exist in a
constitutional framework wherein the president’s core duties are to execute the
laws faithfully and preserve our system of government. The fact that an act is
within a president’s vast lawful power does not make it a faithful,
constitutionally legitimate use of that power. As Faithless Execution
elaborates, an act need not be criminal or indictable in order to be
impeachable. There is far more to fiduciary responsibility than acting within
the margins of technical legality.
* IMPEACHMENT CAN - AND SHOULD FAR MORE OFTEN - BE USED
TO PUNISH "BAD BEHAVIOR" AND (IN MY OPINION) EVEN SIMPLE INCOMPETENCE.
(AND NOT JUST "PUNISH" - BUT "RESCUE" - AS IN RESCUE THE
AMERICAN PEOPLE FROM BAD PEOPLE AND IDIOTS WHO SOMEHOW HAVE REACHED THE HIGHEST
LEVELS OF GOVERNMENT POWER!
To offer an analogy ... a president who uses the pardon power and
prosecutorial discretion as pretexts for usurping Congress’s power to make
immigration law, for encouraging law-breaking, and for remaking the country in
a manner that imperils the economic and security interests of American
citizens, commits grievous impeachable offenses.
To be blunt, there is no real power-of-the-purse check on
the president’s pardon power.
* OTHER THAN...
The only real check on the pardon power is impeachment.
At this point, would a credible threat of impeachment be
much of a check on this president’s designs? I’m not sure. Obama’s stated goal
is fundamental transformation of the nation, and a blanket amnesty would accomplish
that.
* AGREED.
From his standpoint, it might be worth the risk.
* AGREED
Plus, even if the amnesty suddenly ignited public
sentiment for the president’s removal from office (a dubious supposition),
nothing in Washington happens quickly. Obama would still have many months if
not most of the rest of his term to abuse his awesome powers (including by
issuing additional pardons) in transformational ways.
(*SIGH*)
But I do know this: Absent a credible threat of
impeachment, President Obama cannot and will not be stopped from granting
amnesty to millions of illegal aliens, who will in short order be awarded
citizenship and voting rights.
* AGAIN... I CAN COME UP WITH SCENARIOS WHERE THIS ISN'T
THE LIKELY OUTCOME... BUT... SINCE THIS IS THE REAL WORLD AND NOT... er...
BILL'S WORLD... EVEN I COME DOWN ON THE SIDE OF SAYING MCCARTHY'S WORST FEARS
ARE INDEED MERITED. (AS ARE MINE...)
You can call that a plea for impeachment if you’d like. I
call it a statement of fact.
* FOLKS... READ THE CONSTITUTION! I'M BEGGING YOU! DECIDE
YOU'LL DEFEND IT!
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