Sunday, November 23, 2014

What power does the president have when Congress fails.

There are some out there who are cheering the fact that President Obama had the moxie to act when Congress didn't.  For years, perhaps for two decades, the President has been wanting Congress to pass an immigration reform bill.  The reason, well, immigration laws as they are currently written do not work.

The reason they are not working is a little something called The Constitution, which says, "All persons born or naturalized in the United States, and subject to the Jurisdiction thereof, are citizens of the United States and the State wherein they reside."

This has been interpreted to mean that if you are born in the United States, you are a citizen.  For the current immigration debate it means that if a couple from other nations comes into this country, and has a child, that child is a citizen of the US and the state they reside.  If the parents are deported, the child remains here without his mother and father.

This problem is not fixable by a simple or a comprehensive bill passed through Congress, nor is it fixable by executive order of the President.  The only way to fix this bill is to alter the language of the 14th amendment.  This would not be unrepresented as most countries in the world do not recognize "anchor babies" as citizens.

Of course, this is out of context.  The 14th Amendment was designed to give citizenship to former slaves freed as a result of the Civil War, not to give citizenship to anchor babies.  But the courts have interpreted the language of the amendment as such.  However, if it weren't for this, families could be deported to their home countries in total. 

In the long run, that doesn't sound very appealing.  And because most undocumented immigrants come from Latin America, as well as a sizable minority from Asia, any such effort would be dismissed as discriminatory against ethnic groups. 

For all these reasons, efforts to reform immigration have stalled in Congress for years.  The US Constitution only provides limited mechanisms for the executive or judicial branch to act when the legislative branch is hopelessly deadlocked. But President Obama doesn't agree.  And when Congress failed to act on immigration, he decided to act on his own.  Not only was the very action, at best, borderline constitutional, it was sneaky and it will be months before any of this could be fixed by Congress or by the Supreme Courth.  Here are some of the sneaky ways in which this executive order was executed.

1.  Lame Duck Congress.

Election Day is the first Tuesday in November, but the newly elected Congressmen/women/androgynous beings and Senators do not begin their term until the 3rd of January.  The sixty days or so remaining in the term of the old Congress are referred to as the Lame Duck days of Congress and the constitution limits what can be done at this time.  Usually, Congress does not take up new business during their Lame Duck session. 

Legislation passed during this time can be quickly over-turned when the next Congress takes office in January.  Let's also not forget that the party controlling the Senate changes in January.  Any effort to undo what the President has done will die in the Senate before the GOP takes over. Also, the Republicans do not have an over-ride proof majority.  Any action taken by Congress could be vetoed by President Obama.

2.  Thanksgiving Recess

The president did not sign his executive order until after most members of Congress were on their way home for the Thanksgiving recess.  Therefore, members of Congress who decided that spending a week back in their districts and with their families look week for not doing anything.

3.  His term and legacy

The last two years of a president's second term are usually forgotten as the debate in the media turns to the fight over who will replace him.  Too often, the last two years of the second term of many of our past presidents have been marked by scandal and controversy.  Johnson had Vietnam to deal with.  Reagan dealt with the Iran Contra affair.  Clinton's sex life came to haunt him.  And George W. Bush had a whole slew of problems.

I personally wouldn't have yelled a whole lot of Obama had been able to get congress to pass the action that he took in a bill.  This bill affects a small percentage of the undocumented immigrant population.  I would be frankly surprised if the Latino community doesn't act like the kid who got a $2 bill from grandma for Christmas.

I was once told by a college professor that I had that politician who actually solve problems don't get re-elected.  It is absolutely true that the President can't make law on his own when Congress doesn't act.  Our founding fathers would have been foolish to write the Constitution to allow it.  Why even have a legislative branch if the President can act on his own?  The president can write executive orders, but only within the realm that Congress has permitted him to act.

I would have rather seen the President provide a little more leadership and patience in this matter.  He could meet with Latino leaders.  He could put names and faces on TV.  He could encourage citizens to petition their representatives.  But he did not of that.  Perhaps the teleprompter on the bully pulpit is broken.  I think the president doesn't have the command of a crowd that his predecessors possessed.  Something that Hollywood describes as "IT".  I fear for what else this president is going to do on his own.  I hope that someone will emerge as a leader in Congress and put the president back in his place.

I don't say that as a Republican.  I say it as a Citizen of the United States.  Anyone who applauds what the President has done should remember that what this president has done, the next president can undo.  And what this president has done, the next president can repeat.  It is scary to think about no matter which party you belong to.  If Barack Obama can do this, what will Sarah Palin do if she ever gets elected?  Even Democrats in congress should stand up for the sake of the country.