Alberto Gonzales: Obama's time for immigration action
Alberto R. Gonzales 5:24 p.m. EDT August 12, 2014
We are a nation of laws, but also of immigrants. In border crisis, Obama must balance both.
Along our southwestern border, not far from where I was born, tens of thousands of Central American children are turning themselves over to U.S. Border Patrol officers. The overwhelming majority are not criminals, drug dealers or violent offenders, rather most are escaping those threats in their home countries. Poor economic conditions, the threat of violence, and a parent's hope for a better life are the reasons for this situation – the children are not to blame.
In spite of this humanitarian crisis and the economic burdens it creates for state and local governments, recently members of Congress failed to pass legislation to address these issues before heading home for the August recess. In response, the President announced that he will take executive action even though he previously professed publicly his power to deal with the influx of young immigrants was limited.
I support the President's commitment to address this issue provided his actions are consistent with his duty under the Constitution to faithfully execute our laws. Determining the limits of the president's inherent power to act in the absence of either an express constitutional or congressional grant of authority is one of the most difficult challenges in constitutional law. In part, this is because our courts have been inconsistent in defining the scope of the President's inherent authority. (search "the courts' abandonment of judicial review that limits Congress's power...")
Some constitutional scholars argue that the president has no inherent power since this would be inconsistent(search "unlike English kings, lack authority") with the concept of a Constitution intended to create a federal government of limited power. Others believe in an expansive inherent power that allows the president to act as the public needs demand(search "role of the leadership to provide guidance") provided there are no express constitutional prohibitions. Still others believe, as I do, the scope of the president's inherent power lies somewhere along the spectrum between these two extremes.
What is clear, however, is that the courts have generally been inclined to defer to the executive's discretion in executing the law based upon competing priorities and budgetary constraints. Furthermore, often the courts refuse to even hear cases that present a political question. Thus, disputes over allocation of power between the elected branches are frequently resolved in the public arena, not the courts.
Whatever the president elects to do to address this immediate crisis, there will likely be critics who argue that he is acting beyond his constitutional authority. Undoubtedly some of that criticism will be purely political, some will be legitimate. We should welcome good faith challenges to questionable exercises of power by any branch of government. Congress has a duty to protect the institutional prerogatives of the legislative branch. However, I hope that in doing so the constitutional battlefield does not become littered with the souls of innocent children. This is not just a classroom exercise or court room drama. This is a real world crisis involving human beings.
When he acts, the president should leave no doubt that while we are a compassionate nation that takes care of children, we are also a nation of laws and will enforce those laws to secure our borders. These undocumented children should be afforded prompt individualized adjudication. In the interim they should be fed, housed and protected, not deported into the clutches of predators nor released into the U.S. general population with instructions to report back in a year. Because Congress failed to appropriate additional funds before the recess, the President will have to exercise whatever authority he has to reallocate money in the executive budget and fund additional immigration judges, hearing officers and administrative personnel in order to accelerate the hearing process. This should free up border agents to do what they are paid to do – secure our border.
Our country was founded on the rule of law, and as a sovereign nation we have the authority and responsibility to determine citizenship and residency requirements. We are also a nation of immigrants, and we are a compassionate people. These fundamental American truths are in tension with one another here, and it is this tension that has frustrated our ability to effectively address our immigration challenges. My support for a comprehensive long term immigration plan is well documented; but I fear that goal will not be met in the foreseeable future. It remains to be seen whether a humane and just solution can be found for these children – one that also relieves the burdens on state and local governments who are asked to meet their needs.
Like many Americans, I am weary of federal leaders pointing fingers and blaming others for failing to do the job they were elected to do by the American people. Due in part to oversize egos and political ambitions our country does not have an immigration process that supports our economy nor one consistent with our national security needs. Instead of exercising real leadership, some officials in Washington have defaulted to that tired, worn out game plan of waiting until the next election, much like a majority of them have put off meaningful entitlement reforms and budget deficit reductions.
Opponents charge that immigration reform will be too costly. Others say they simply do not trust the president to faithfully execute the laws. The failure by the president to do his job does not excuse Congress from doing their job. Investing today in our immigration court system and in developing a comprehensive plan would save billions in the long run and adhere to our principles of fairness and justice.
Alberto R. Gonzales is former counsel to the president and the United States Attorney General under the George W. Bush Administration. He is currently the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.