Accusations of Caesarism Should Not Be Dismissed Lightly

By Dan Cadman on August 12, 2014

The Economic Policy Institute's Daniel Costa has written a defense, even before it has happened, of the president's ability to expand deferred action to additional as-yet-undefined categories of illegal aliens, beyond the current DACA program for about half million youth and young adults.

The piece, entitled "American Caesar? Not Even Close: The president has the statutory authority he needs to expand deferred action", is well-written, but fails a critical examination of logic. (Its title refers to a New York Times column and subsequent blog post by Ross Douthat.) Here is why it doesn't ring true.

Past administrations are no reliable guide to what is legal or moral. Mr. Costa argues that other presidents have undertaken unilateral executive action on immigration. Assuming — only for the moment — that this is true, it is still a low and inappropriate threshold for the acceptable, whether speaking about immigration matters or anything else. Other presidents have baldly lied to the American people (and not just about personal sexual peccadillos); other presidents have used the Internal Revenue Service to get back at political enemies, real or perceived; other presidents have directed, or passively accepted, massive government invasions of Americans' civil and privacy rights, such as happened routinely with the FBI under J. Edgar Hoover, as well as with U.S. intelligence agencies conducting covert domestic operations. Does anybody think those past acts, either directed or condoned by our chief executive, should ever be prologue to our future?

Size and scope matter. Let us return to the question of whether what this president has done, and proposes to do, equates to the same thing as past presidents. I think not. Consider the example Mr. Costa gives as proof that other presidents have undertaken similar programs. He provides us with a handy link to a U.S. Citizenship and Immigration Services (USCIS) website that conveniently provides a backdrop of a prior "deferred enforced departure" (DED) program involving Liberia.

A quick check tells us that this DED program was directed by George W. Bush in 2007 after the end of temporary protected status (TPS), which had been granted to Liberian nationals from 1991 to 2003. The original grant of TPS was due to civil war in Liberia, which spilled over into surrounding countries. Barack Obama extended it again in March 2013. How many Liberians were likely affected by this grant of DED? The Congressional Research Service estimates the number at around 10,000 — one 50th the number of illegal aliens granted benefits under Deferred Action for Childhood Arrivals, and one 500th of the number of potential recipients of any additional executive action by the administration, using Mr. Costa's own estimate of a potential four-to-five million illegal aliens who would be placed into a program created out of whole cloth without benefit of any statutory authority. Considering that current estimates number illegal aliens now in the United States at 10 to 12 million, the president would unilaterally be offering a kind of amnesty to somewhere between one-third to one-half of that population. Do we really believe our chief executive has such god-like power, notwithstanding a panoply of laws that say otherwise? If so, why has he invested so much time in trying to encourage Congress to enact "comprehensive reform"? If he didn't need them, why waste the time and energy?

Purpose and intent are significant. Immigration law and policy are difficult, often confusing matters for the public to discern. It is tempting to mentally check out on the entire debate about presidential overreach on such an arcane topic, but we do so at our peril because a fragile Constitution that outlines a republican form of democracy with a deliberate separation of power between three branches is all that stands between us and Imperator Caesar Augustus.

Mr. Costa would have us believe that the president's powers over foreign policy are virtually unfettered by the other two branches of government, most especially the legislative — thus giving him all the right he needs to unleash his deferred-action-on-steroids program. But the president's powers are not as broad as he suggests, and in any case, the reference is inapplicable. There is a chasm of purpose and intent between something as focused as granting TPS and then DED to a limited group of Liberians under the specific circumstances that pertained and taking a domestic policy action to grant amnesty to five million illegal aliens.

Let us bring the example of Liberia forward in time for a moment. As most everyone knows, right now in West Africa there is a virulent outbreak of the horrific ebola disease that has spread to several nations, including Liberia. Americans are deeply concerned over the potential for the disease to reach our shores. Were the president to declare a DED for the necessary period, covering the affected nations of Africa, few Americans would disagree. Furthermore, we would have serious concerns over having removal officers escort those aliens into Liberia or elsewhere and then come home with the increased risk that the officers themselves might become infected and inadvertently bring the ebola virus back with them.

Can anyone reasonably compare an act of limited size, scope, purpose, and intent such as DED with domestically waving the magic wand of "executive action" to grant millions of illegal aliens the right to live and work in the United States?

Don't confuse work authorization with permission to remain. Mr. Costa's citation of the law relating to grants of work authorization (INA Section 274A(h)(3), codified at 8 U.S.C. 1324a(h)(3)) is technically right, but misses the essential point. He correctly observes that the law permits the Attorney General (whose powers were transferred to the Secretary of Homeland Security) to grant work permits. But work permits do not equate to extra-legal permission for illegal aliens to remain in the United States.

It is disturbing that anyone would not see the irony in trying to establish a rational basis for a chief executive acting outside the law by quoting a legal citation.

It is a fair presumption that when the law was written its authors contemplated that the Attorney General (now Homeland Security Secretary) would only grant such employment authorizations when acting in the public interest and in conformity with the statutory scheme for immigration control, which isn't the case in this administration. If that were not the case, we would not see such agitation in the House of Representatives that it votes to sue the president for exceeding his authority and trampling on their constitutional prerogative for making laws by de facto and widespread abrogation of those laws.

The latter is an act of statutory nullification and is in no way an exercise of the president's foreign policy or any other constitutional prerogative. Mr. Costa's attempt to provide legitimacy to such a naked power grab is the height of absurdity. A pig in a tuxedo is still just a pig in a tuxedo.