Under the Constitution’s separation of powers, the Executive is charged with enforcing the laws that Congress enacts. In Obama’s America, the executive office has aggregated to itself a previously unknown power: the power to pick and choose which laws to enforce and which laws to ignore. This unusual twist on the executive’s responsibilities started when Barack Obama, dissatisfied with Congress’s refusal to pass the DREAM Act’s promise to give permanent residency to millions of young illegal aliens, simply imposed his own DREAM Act by refusing to enforce this country’s deportation laws.
That arrogance has trickled down to Janet Napolitano, Secretary of the Department of Homeland Security, who is actually in charge of immigration matters. Last year, agents from the US Immigration and Customs Enforcement agency (“ICE”) sought an injunction against Napolitano challenging her directive that the agents must stop any efforts to deport illegal immigrants. The agents claim that neither Napolitano nor Obama can set the law, by selective enforcement decisions. Instead, said the agents, they must enforce the law as written.
The agents are not exaggerating when they describe Napolitano’s sense that, when it comes to immigration, she and the President are both judge and executioner. During a Senate hearing last Wednesday, in response to a question from Sen. Jeff Sessions (R., Ariz.), Napolitano revealed that she thinks it’s entirely appropriate for the Executive Branch of government to pick and choose which laws to enforce and which to ignore:
Sessions (R – AZ): I started out as a federal prosecutor in the Department of Justice in 1975. I have never heard of a situation in which a group of law officers sued their supervisor and you for blocking them from following the law. They weren’t complaining about pay, benefits, working conditions. They were saying their very oath they took, to enforce the law, is being blocked by rules and regulations and policies established from on high and that this is undermining their ability to do what they’re sworn to do.
Napolitano: There are tensions with union leadership, unfortunately, but here’s what I expect as a former federal prosecutor and attorney general, and that is that law enforcement agents will enforce the law in accord with the guidance they’re given from their superiors. That’s what we ask of ICE, that’s what we ask of Border Patrol, that’s what we ask throughout the Department and I believe that would be consistent with all law enforcement. Agents don’t set the enforcement priorities. Those are set by their superiors and they are asked then to obey that guidance in accord with the law. (Emphasis added.)
As the Duke might have said, “Mighty fine words there, little lady.” The only problem is that , the day before she said those words, a federal judge had announced that Napolitano is dead wrong – the executive branch of government does not get to nullify properly passed laws by refusing to enforce them. There is a possibility, then, that when Napolitano boldly stated in the Senate that she and the President could do whatever the heck they want, and laws be damned, she was deliberately ignoring a contrary judicial finding. If that’s the case, she’s also claiming that the separation of powers is completely invalid, because the executive office trumps everything.
On April 23, the day before Napolitano testified in before the Senate, U.S. District Judge Reed O’Connor held explicitly that the executive has no discretion when it comes to enforcing United States law: “The court finds that DHS does not have discretion to refuse to initiate removal proceedings.”
The ICE case isn’t over yet because the court, having stated the law, still needs to determine where the facts fit in on that continuum. The one thing that’s plain, though, is that Napolitano declaration of power before the Senate is unconstitutional executive overreach.