Constitutional Decibels

Well, our president, by most tallies, “went big” on immigration action – just before going equally all presidential on us with regard to Cuba, climate change and net neutrality. And in obeisance to the laws of political physics, the response from conservatives, fresh from a big win in a low-turnout election was both proportionally expansive and cloyingly whiney. However, another principle of the current wave of politico-physical science also applies: the volume of hot air the current crop of demagogues generates is inversely related to the substance of their argument. (And its sincerity.)

Let’s start with substance, shall we, and more specifically the matter of magnitude. The xenophobic caterwauling by the Obama’s foes contains one element of truth, as pointed out by the Washington Post on December 4 (“President Obama’s unilateral action on immigration has no precedent.”) Undeniably, the president’s action is bigger than other prior executive initiatives affecting immigration, by a pretty wide margin, and justifying the action by declaring it proportional to those taken by, for instance, Bush père leads nowhere, especially since the assertion is highly questionable. So, by some, if not all, quantifiable measures, what Obama has done is indeed unprecedented, notwithstanding the slightly bizarre effort by the administration to make it appear quantitatively less remarkable than it is. And why wouldn’t it be remarkable, since it answers, by design, the call of advocates who have been demanding, rightly in our view, more than tokenism? Four to five million beneficiaries of temporary relief from removal under the program is a lot. It’s also the point. While Obama’s executive action might be arithmetically outsized compared to historical precedent, it is quite proportional to the issue it is attempting to address, i.e., an urgent need to align immigration law with the state’s interest in basic fairness, family unity and long-range economic prerogatives, to name just those three.


What is considerably less clear than the mere observation of the initiative’s magnitude is how the size of the relieved population informs its legality, or is even pertinent to the discussion. Think about it. Would immigration reform occupy such a dominant place in policy preoccupations if the issue only concerned a small cohort? A prevailing argument on the right is that Obama crossed some kind of numerical threshold that automatically bumps him out of the bounds of his authority. I, for one, do not see the relationship between the numbers and the legality of the president’s executive endeavors. I would love to see the legislation, court order or Constitutional command that sets a numerical limitation on the reach of a president’s actions in the performance of his duties. The fact that the executive action on prosecutorial discretion by Immigration and Customs Enforcement (ICE) is, in the words of the Post, “massive” and “unilateral” does not, in and of itself obviate its legality.


OK, I do not want to masquerade as the constitutional expert I am not. True, having performed much research into the ins and outs of U.S. immigration enforcement, I feel at least as comfortable in my informed opinion on the matter as any cable TV talking head or Congressional loudmouth. At the same time, I readily accept that my views mirror those voiced by legal scholars my research has led me to trust as opposed to my independent reading of legal doctrine and precedent. (I’d like to hear a member of Congress admit as much without sprouting a Pinocchio growth on his nose.) The punch line, – not to leave you in suspense – is that the president’s actions are indeed legal and clearly within his authority. In fact, a coterie of some of the country’s most prominent legal scholars, such as Stephen Legomsky of Washington University, have written to the president suggesting he could have gone even further without running afoul of the law. In particular, the group clearly opined that Obama could have included parents of beneficiaries of the Deferred Action for Childhood Arrivals program, or DACA, instituted in 2012, and, sickeningly, the subject of especially virulent conservative ire. I am also inclined to believe, given Obama’s extreme circumspection with regard to the limitations of his office, was, if anything, extra cautious. I have commented on the past that, contrary to the howling of his political antagonists – who have staked their brand on virulent and racially tinged antagonism for its own sake – tarring Obama with acting like a Constitution-defying monarch, the president has bent over backward in his deference to the limitations of the presidency. His stance has often dismayed his supporters, myself included. He declined to invoke the 14th Amendment’s proscription of default on Federal borrowing when the House majority wielded its debt-ceiling weapon like a bludgeon. Nor did he seek to limit the reach of the NSA’s expansive interpretation of the USA Patriot Act, again out of deference to past legislation. (Although one might also suspect that our Democratic President is especially sensitive to charges of fecklessness whenever national security is at issue, and adopts an eerily familiar hawkish stance in an effort to duck them.)


Conservatives have pounced on Obama’s past statements expressing his thinking that the limitation of his office precluded broad use of prosecutorial discretion as an avenue of relief for immigrant families exposed to fracture because of the aggressive deportation practices unleashed by the immigration code and abetted by Obama himself. According to this line of reasoning, prior pronouncements by Obama are proof that his recent executive action is illegal, rather than an indication that, perhaps, he was proceeding with extreme prudence, in keeping with his habitual cautious, even timid stance on the limitations of executive power. The 20-odd states that have joined a lawsuit in Federal court in an attempt to derail the executive action have entered the president’s quotes into evidence. Video of Obama’s comments from months ago makes for great ‘gotcha’ moments on Fox News, but tagging them as proof is nonsensical on its face. True, Obama had to be coaxed away from his heedful obeisance to separation of powers by immigration rights advocates, and by a lengthy process of legal review. After the shenanigans of the Office of Legal Counsel under George W. Bush, one might feel a healthy wave of skepticism toward an agency that gave us John Yoo’s torture memo and endorsement of warrantless wiretaps. However, Obama had explicitly promised executive action on immigration for months, so legal experts, including but not limited to the OLC, have had scads of time to consider the constitutional ramifications of just about any permutation. Not to mention that Deferred Action for Childhood Arrivals (DACA) has been around for two years without successful legal challenge. The operative mechanism for DACA and the new executive actions – prosecutorial discretion – is virtually the same.


The supreme irony of the accusations of unconstitutional behavior on the part of Obama probably escapes those who level them the most noisily. It resides within immigration law itself, whose formulation and enforcement are wholly dependent on the law’s exemption from constitutional scrutiny. As I have written in the past, via this blog and elsewhere, this exemption traces its origin to an arbitrary judicial doctrine, called plenary power, which spawned the tradition of the federal courts keeping their sticky fingers off immigration statutes, intervening only with regard to jurisdictional boundaries and in narrow cases of due process, the latter defined as the government’s obligation to follow its own rules. The constitutional compliance of the statutes themselves is virtually never questioned. Let’s examine a few ways in which immigration law and its enforcement violate the Constitution, sometimes crudely.


In 2013, of 438,421 deportations conducted by the Federal government, some 83 percent were ordered by immigration officers, not judges. Deportees “did not have a hearing, never saw an immigration judge, and were deported through cursory administrative processes where the same presiding immigration officer acted as the prosecutor, judge, and jailor.” (Source: ACLU Immigration Project) In these cases, the individuals were removed subsequent to a criminal charge – attempting to enter whilst evading inspection by an immigration official. Consequently, the government blithely ignored Amendment VI on several counts, trivial matters such as the right to a public trial, to benefit from a process for obtaining witnesses in favor of the defendant, and to the assistance of counsel.


Amendment V proscribes double jeopardy. However, in countless cases, immigrants having paid a penalty for a minor offense duly adjudicated by the criminal justice system also face removal and exile from their families. The law does not acknowledge deportation as incremental punishment even though it clearly is, as pointed out by Justice John Paul Stevens in his majority opinion in Padilla. (In deference to plenary power, the Padilla decision did not overturn the clauses of the immigration code that permit double jeopardy; it only ordered that an immigrant faced with criminal charges be informed of the possibility of removal before entering a plea.) Further, the detention network for years has been operated to correctional standards of incarceration, meaning that despite the law’s insistence that detention is purely an administrative and not a punitive measure, the government jails people without trial or indictment.


This same double jeopardy triggers a breach of the equal protection clause of Section 1 of Amendment XIV, one of our most treasured Constitutional principles. Indeed, the imposition of exile atop any penalty ordered by a criminal court only applies to non-citizens as a class, one consequently denied equal protection, especially since so many deportations are automatic in many circumstances. One might argue that there is no way around this short of abolishing removals altogether, including of persons who present a clear menace to public safety or order. However, I believe there is a remedy, one which would contribute mightily to fairer immigration enforcement. Suppose the following: (1) that judges presiding over the immigration courts were given the discretion to grant or deny relief from deportation pursuant to a process that considered varied and sometimes conflicting interests of the state and society and (2) that process included the same right to counsel as in a criminal proceeding, since exile is clearly a severe penalty imposed separately from any other. If this were to happen then at least a target for removal could make his or her case for relief rather than see a single conviction automatically result in different penalties because of a distinction between citizen and non-citizen the Constitution professes not to condone.


Amendment VIII forbids excessive bail, and cruel and unusual punishment. One might say that the entire prison system in the United States violates Amendment VIII, so the immigration network is unexceptional in this regard. However, the very placement of immigrant detainees in a correctional setting to which they have not been sentenced and where they are subjected to beatings, deprivation, loss of property and hardship to their families is a particularly glaring violation of Constitutional protections and the 8th Amendment.


We don’t want to leave out Amendment IV, although the law does not specifically condone arbitrary searches and seizures…in theory. The practice is far different, aided by the establishment in 1953 of 100-mile border zone often dubbed “Constitution-free” because of its invitation to warrantless searches. The zone does not explicitly exempt the government from the 4th Amendment; immigration officers must have a reasonable suspicion that a target has committed an immigration offense and cannot, in theory, just go with their gut or on a hunch. Again, the practice, is starkly different, exacerbated by the apparent encouragement given to patrol officers in the immigration statutes. “As a result of regulations issued interpreting the [powers of immigration officers and employees], Customs and Border Patrol can and does conduct operations far removed from the border and on roads with no immediate border access.” (Source: ACLU). Without warrants. The CBP also operates checkpoints far removed from border crossings, amounting to a virtual dragnet. Note that about two-thirds of the total U.S. population lives within the 100-mile zone, measured as the crow flies from our land boundaries and shorelines. Examples of 4th Amendment violations in the zone abound, from raids on maternity wards in Arizona to cash awards offered to CBP agents based on the number of arrests they make.


So, here’s a thought. What if those in Congress wailing righteous outrage over Obama allegedly exceeding authority under the Constitution committed to subjecting the immigration code to an analogous test of compliance with that same bedrock of American justice? Deal?



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