Obama's Rule of Lawlessness

By James R. Edwards, Jr. on May 8, 2011

The Obama administration seems married to an ideology of willful lawlessness. Attorney General Eric Holder has vacated a ruling of the Board of Immigration Appeals concerning a deportable alien on account of sexual orientation. The next day, a similar deportation was held up on the same grounds.

This is the same administration and Justice Department and attorney general that filed suit against the state of Arizona last year over the state's duly enacted S.B. 1070, which closely paralleled federal laws concerning immigrants.

In the first removal case, the BIA had ordered an illegal alien from Ireland to be removed from the country. Paul Wilson Dorman is party to a New Jersey "civil union" with another man. Holder's action stops the case from proceeding in the 3rd Circuit Court of Appeals, to which the case had been appealed. Instead, Holder ordered the BIA to reconsider the case in light of the administration's refusal to defend a duly enacted law on the books.

In the second case, an immigration judge postponed deportation of Venezuelan Henry Velandia, in light of Holder's vacating the BIA decision. Velandia married a male U.S. citizen, Josh Vandiver, last year in Connecticut, where gay marriage is legal.

Why did Holder take this "rare step?" Because the BIA partly relied on the Defense of Marriage Act in arriving at its decision. DOMA disallows recognition of other than male-female marriage. Appropriately and law-abidingly, the BIA disregarded the alien's "union" as making him a "spouse" under immigration law and thus eligible for cancellation of removal on grounds of exceptional and unusual hardship.

The Obama administration announced earlier this year it would no longer defend the Defense of Marriage Act, calling it unconstitutional in the president's opinion. The president's personal stance toward a given law, however, is hardly dispositive of its constitutionality. Until Congress repeals a law or the U.S. Supreme Court strikes down a law, the administrative branch owes the American people a solemn duty to faithfully execute every law of the United States. The Bush administration's failure to faithfully enforce certain immigration laws left the vast majority of Americans rightfully angry and crying foul.

This country's fundamental preservative of liberty is the Rule of Law. Without it, a president's substitution of his own preferences and whims is tantamount to tyranny. Otherwise, laws have little meaning, the legislative process has no certainty and meaning, and all that is left is officials (the president, judges) in the non-legislative branches acting solely on their personal biases.

Regardless of one's stance on gay rights, an administration's outright refusal to enforce a legitimate law that two previous administrations did fulfill their sworn duty toward and uphold should cause you to shudder. That is exactly what this administration has decided to do: take the law into its own hands.

The Defense of Marriage Act, enacted in 1996 and signed by then-President Clinton, federally defines marriage as an institution reserved for one man and one woman. DOMA allows states to decline to recognize same-sex unions performed in another state. Some 37 states have their own DOMA (effectively the same parallel construction of law that S.B. 1070 achieved in the immigration context), and two others similarly protect heterosexual marriage. Thirty states define marriage in the traditional manner by constitutional amendment.

Immigration watchers can expect a rash of litigation claiming rights for foreigners that do not exist or that they are not owed. This lawless course will prompt fraud and abuse and exploitation of the Obama-created loophole. This administration is taking the country down a very dangerous path. And the ramifications will prove wide-ranging.