'Tis the season for executive overreach
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A presidential transitioning is upon us and we all know what that means: pardons. 

Statistics from the Congressional Research Service show former president Bill ClintonWilliam (Bill) Jefferson ClintonIs the US capable of thinking strategically? Bob Dole: heroic, prickly and effective Biden on Bob Dole: 'among the greatest of the Greatest Generation' MORE granted almost 200 pardons in his final three months in office, substantially more than any other president from Johnson onward.

What Obama will do is of course difficult to predict, but immigration-control advocates are bracing themselves. On top of applying the most commutations of any president in history, Obama’s also the first post-American president we’ve ever had. 

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He’s shown that an open-borders America is core to his personal legacy, however, his dramatic push for mass amnesty has been routinely thwarted throughout his tenure. It was first rejected by Congress when they killed the DREAM Act, then by the federal courts which enjoined his administrative DAPA program. His agenda was also knocked back twice by the direct will of the American people: first in 2014 following the “amnesty” midterms, which saw an electoral routing of his party, and then with the election of Donald J. Trump: perhaps the most pro-rule of law, pro-American worker, and pro-sovereignty president we’ve ever seen in recent history.

Unsurprisingly then, anti-borders groups are begging Obama to apply his pardon powers to illegal aliens just like he did with deferred action. That is, broadly, unprecedentedly, and absolutely at odds with democratic principles.

Any first-year law student, however, will see problems with this. First and foremost, the President’s constitutional pardon power under Article II §2, does not apply to deportation under immigration law as it’s a civil matter and not punishment. As the Second Circuit clearly stated in Brazier v. Commissioner of Immigration in 1924, “[a] pardon is for a crime…; inter alia, it avoids or terminates punishment for that crime, but deportation is not a punishment, it is an exercise of one of the most fundamental rights of a sovereign.” Thus, although the pardon could protect them from prosecution of their crimes in the U.S., it couldn’t grant them legal status or prevent their removal under immigration law. They also would remain unentitled to work authorization, driver’s licenses, or any other benefit.

The “precedent” offered by anti-borders groups is President Carter’s mass pardoning of Vietnam War draft-dodgers in 1977. There, Carter’s pardon applied to a single set of violations committed against the Military Selective Service Act; a relatively simply statute which requires draft registration and service if need be.

But for which crimes would Obama pardon illegal aliens? If he were to consider the Immigration and Nationality Act (INA), one of the most comprehensive statutes in the entire U.S. Code, it would mean mass pardoning of multiple legal violations just in that statute alone.

Apart from the offenses of unlawfully entering the country without inspection or overstaying one’s visa, there’s the offense of ‘Willful failure or refusal to depart’, ‘Failing to register as an alien’ (or relatedly, failing to report themselves to an immigration official), ‘Failing to carry an alien registration document’, ‘Marriage fraud’ (which is rampant, yet never reported by the media), ‘Reentry of deported aliens’, and ‘Falsely claiming citizenship’, such as on an I-9 employment eligibility form (or similarly, making ‘Fraud and false statements’, such as providing phony documents to a border agent).

Then there’s those who’ve illegally brought in others, activities which would give rise to ‘Aiding or assisting certain aliens to enter’, ‘Unlawful bringing of aliens into the country’ and ‘Bringing in and harboring certain aliens.”

There’s also a host of fraud provisions elsewhere in the federal code and on state books (the latter which presidential pardons cannot affect), including document fraud, false birth certificates, ID document fraud, misuse of social security number, and aggravated ID theft.

Given that the latter disproportionately affects American children (also rampant and never reported), how would the public react to such a sweeping pardon?

Mass pardoning of illegal immigrants is surely not what the founding fathers intended.

Such an action, of course, would not have been necessary had Obama ‘taken care that the laws be faithfully executed’ as he is required under Article II, §3. And asking the American people to let the president renounce the laws they themselves installed through their elected representatives simply cannot have been what the founders envisioned.

Let’s hope Obama in his final days holds back further executive overreach and refrains, however futile it may be, from solidifying his legacy as being perhaps the most lawless presidents in American history.

Smith is an investigative associate with the Immigration Reform Law Institute.


 

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