U.S. Constitution
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Title: REPUBLICANS CAN STOP EXECUTIVE ORDER AMNESTY DEAD
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URL Source: http://northamericanlawcenter.org/r ... der-amnesty-dead/#.VG3FmvnF-Jg
Published: Nov 20, 2014
Author: JB Williams
Post Date: 2014-11-20 05:48:17 by out damned spot
Keywords: Republicans, executive order, amnesty
Views: 8533
Comments: 32
The little dictator-in-chief is set to announce his unconstitutional attempt to circumvent and subvert the constitutional powers of Congress Thursday night, as he attempts to single-handedly grant millions of illegal aliens defacto amnesty and then head off to Las Vegas to party with Harry Reid.
A little past noon Wednesday the 19th, the White House posted a Facebook announcement that reads as follows;
“It’s time to fix our broken immigration system. Tomorrow night (November 20th), President Obama will address the nation on new commonsense steps he’s taking to fix as much of it as he can. Tune in tomorrow at 8pm ET on http://WhiteHouse.gov/Immigration-Action #ImmigrationAction”
Does Barack Hussein Obama have any constitutional authority to alter U.S. Immigration and Naturalization laws or rules via Executive Order?
The answer is not just NO, it is absolutely not!
Article I – Section 8, under the enumerated powers of Congress, the U.S. Constitution assigns all legal authority to establish rules and regulate United States Immigration and Naturalization solely to the U.S. Congress, which has indeed established a uniform set of rules for immigrating to the United States and becoming a United States citizen.
Article II relative to the Executive powers of the Oval Office makes no mention of any law-making authority whatsoever, any powers to regulate Immigration or Naturalization rules, or any power to circumvent or subvert the Laws of the United States as established by Congress. There is also no mention of Executive Orders or special executive powers in Article II of the U.S. Constitution.
Therefore, Barack Hussein Obama has NO constitutional legal authority whatsoever to alter, circumvent, subvert or otherwise ignore the standing laws of the United States concerning Immigration and Naturalization.
Article I – Section I – “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article I – Section 8 – The Enumerated Powers of CONGRESS – “To establish a uniform rule of naturalization…”
This means that any unilateral executive action by Barack Hussein Obama on Immigration and Naturalization is a blatant act of treason. If Barack Obama is foolish enough to take any such action, he must be held fully accountable for those actions immediately.
WHAT ARE EXECUTIVE ORDERS?
The Executive Branch has one constitutional authority, and that is “to faithfully execute the laws of our land,” the U.S. Constitution, the Bill of Rights and our Immigration and Naturalization laws. Obama and all Democrats have openly and purposefully refused to do so and now, they threaten to run roughshod over congressional authority in broad daylight, expecting both Congress and the American people to lay down and silently take it.
Under Article II – Section I of the U.S. Constitution, “Before he (Obama) enter on the execution of his office, he shall take the following oath or affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Contrary to popular modern “expert legal” opinions from lawyers never taught constitutional law or American history, the President of the United States is not granted any power of dictatorship. The Oval Office does not have any legal authority to rule the nation in any unilateral method.
As a result, any such effort on the part of any Oval Office occupant is a blatant effort to circumvent, subvert, undermine and destroy the Rule of Constitutional Law and the Constitutional Republic.
The power of Executive Orders are limited to items under the legal purview of the Executive Branch and they are limited to “executing the laws” established by Congress. Executive powers do not extend to law-making authority, nor do they extend to subverting or circumventing the laws of our land.
Further, Executive Orders can only stand with the approval of Congress. Congress has the constitutional authority to override any Executive Order that is beyond the legal purview of the Executive Branch under the U.S. Constitution.
NOT A DICTATORSHIP
The United States Constitution does not form a dictatorship, nor does it form a nine member unelected oligarchy called the Supreme Court, nor does it create a government of, by and for La Raza and millions of illegal aliens.
For Obama to successfully commit treason against the United States by aiding and abetting known criminal invaders of our nation, against the overwhelming will of legal American citizens and taxpayers, Congress will have to stand down and abdicate all constitutional congressional authority to the Executive or Judicial branches, rendering the US Congress complicit in the treason and worthy of total destruction by the American people.
WHAT CAN CONGRESS DO?
First, I state for the record – REPUBLICANS HAVE ALL THE POWER THEY NEED TO STOP EXECUTIVE ORDER AMNESTY DEAD, RIGHT NOW!
This means that for Obama to get away with what he is about to attempt, Congressional Republicans will have to allow him to get away with it. It means that Congressional Republicans want amnesty too, but want to be able to use Obama’s unilateral move as a political hammer later…
Second, although many Congressional Democrats are too ignorant to know or care that what Obama is about to attempt is both unconstitutional and illegal, Obama himself does know, which is why he has not already done it, before being bullied into doing it now.
So, if Republicans care to represent their constituents by upholding the Rule of Constitutional Law and protecting and defending the sovereignty and security of the United States, they will have to STOP OBAMA AMNESTY dead in its tracks. Or, they become complicit in Obama’s treason…
Now, the how…
Obama will attempt Executive Amnesty during this lame duck session of congress, before Republicans take control of both houses in January. He will do this because Republicans can hide behind not yet having control of the Senate, which they will falsely claim they must have in order to stop Obama.
However, because the issue is black and white, the power to regulate and make rules concerning Immigration and Naturalization resting in the sole legal purview of Congress, House Republicans can act right now to block Obama amnesty.
House Republicans can immediately move to pass a House Resolution declaring that Barack Hussein Obama has no constitutional authority to regulate Immigration and Naturalization rules, delegated as a sole authority of the U.S. Congress in Article I – Section 8 enumerated powers of Congress, nor any power to circumvent or subvert the Rule of Constitutional Law via Executive Order.
This resolution will render any Executive Order on amnesty “null and void” on arrival, making it an illegal act for Immigration and Naturalization officials to act on that illegal order.
House Republicans can immediately file Article of Impeachment in the House Judiciary Committee, naming all Democrat co-conspirators to include Vice President Joe Biden, Senate Leader Harry Reid and House Minority Leader Nancy Pelosi, making it impossible for any of them to succeed Barack Hussein Obama in the constitutional line of succession to the Oval Office.
A Senate impeachment trial can begin after the 114th Congress is sworn in in January.
There are more steps that can and should be taken by Congress after the first three steps identified above, but there is no point in discussing those steps until House Republicans have taken action on the above items.
In short, the American people do not have to sit back and tolerate the abuses of the executive office that have defined the Obama Administration for the past six years.
The people do not have to quietly accept illegal amnesty via executive fiat and neither does Congress.
I hope that Obama does take this suicidal step tomorrow, as it will bring about the end of his tyrannical despotic and fraudulent reign over America and begin the process of holding all of his co-conspirators fully and criminally accountable for their many acts of treason against the United States and the American people.
My only concern is what lies ahead for Congressional Republicans if they fail to faithfully execute the oaths of their offices and allow Barack Obama to render Congress, the Constitution and our Republic extinct.
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My only concern is what lies ahead for Congressional Republicans if they fail to faithfully execute the oaths of their offices and allow Barack Obama to render Congress, the Constitution and our Republic extinct.
Well, then, you're going to see your only concern come to be the reality.
Obama will act. The only tool the House has to refuse to pass any sort of continuing resolution on the budget, which means government shutdown, which in turn means eventual default...which means that the super-rich Republicans would have their wealth wiped out. Which means that the Republican Congress will NOT, in fact, use government shutdown to the bitter end: their owners won't let them.
Which means that Obama wins.
#2. To: out damned spot (#0) (Edited)
I hope when all the rioting starts ... the military gives him exile --- in Egypt !
Send the clintons ... with squeaky Eleanor cliff fromme --- to Serbia !
Inciting the Ferguson mobs is ... his ace in the hole --- he will be dragged into !
Someday he will be found like quadaffi hiding in a storm sewer drain !
If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !
#3. To: out damned spot (#0)
REPUBLICANS CAN STOP EXECUTIVE ORDER AMNESTY
It is indeed likely that the congress will NOT stop this executive order.
As a matter of fact, by the time spring rolls around, this EO will not even be a topic of conversation on right-wing radio. (MHO)
Why? because it will not affect the day-to-day lives of 98% of Americans.
This EO is mostly a political move.....
"we are tartets from evil doers!!!" [ and ] U looked up birfer on the dcitionary. It isn't a movie.
#4. To: out damned spot (#0)
House Republicans can immediately move to pass a House Resolution declaring that Barack Hussein Obama has no constitutional authority to regulate Immigration and Naturalization rules, delegated as a sole authority of the U.S. Congress in Article I – Section 8 enumerated powers of Congress, nor any power to circumvent or subvert the Rule of Constitutional Law via Executive Order.This resolution will render any Executive Order on amnesty “null and void” on arrival, making it an illegal act for Immigration and Naturalization officials to act on that illegal order.
A House Resolution would not render any Executive Order null and void. A House Resolution would be a legislative fart in the wind. Legislative intent has not been misunderstood.
The question at hand regards the use of executive prosecutorial discretion.
Congress has already written its intent within statute law.
Division C of Pub.L. 104–208, 110 Stat 3009-546 at 720
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)
SEC. 659. SENSE OF THE CONGRESS REGARDING THE MISSION OF THE IMMIGRATION AND NATURALIZATION SERVICE.It is the sense of the Congress that the mission statement of the Immigration and Naturalization Service should include a statement that it is the responsibility of the Service to detect, apprehend, and remove those aliens unlawfully present in the United States, particularly those aliens involved in drug trafficking or other criminal activity.
In a letter of 1/19/2000 to Rep. Barney Frank, then Assistant Attorney General Robert Raben wrote:
The IIRAIRA eliminated both the possibility of relief from deportation and the possibility of bond for many criminal and other aliens placed in deportation and/or removal proceedings who previously would have been eligible for relief. Consequently, the IIRAIRA rendered the exercise of prosecutorial discretion by the INS the only means for averting the extreme hardship associated with certain deportation and/or removal cases.
Then Rep. Barney Frank (D-MA) commented:
What Congress said was "We are going to take away all of your discretion." The bill that passed purported to take away prosecutorial discretion. The purpose of the bill was to say to INS "Deport them all." It is none of your business to say, "Stay here, or not to stay here. Get rid of all of them."
Rodriguez, Christina, "The President and Immigration Law" (2009), Faculty Scholarship Series, Paper 3908, 512-13 [footnotes omitted]
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4913&context=fss_papers
1. Deportation for Unauthorized PresenceFirst, and perhaps most importantly, Congress has delegated substantial authority to the President by making deportable all persons who have entered without authorization. Historically, unauthorized entry did not always render an immigrant deportable. The first federal immigration controls contained no deportation provisions.
[...]
Today, however, the Immigration and Nationality Act makes deportable any noncitizen who enters the United States without authorization or who overstays her visa. Though these provisions lay out clear rules that do not confer any de jure discretion on the Executive to determine who has lawful status and may therefore remain in the United States, in practice they delegate tremendous authority to the executive branch. The principal reason is that over thirty percent of all noncitizens living in the United States are deportable under this provision because they have either entered illegally or overstayed their visas.
Id. at 518-19:
Far from eliminating discretion, then, the statutory restrictions on discretionary relief have simply consolidated this discretion in the agency officials responsible for charging decisions. Prosecutorial discretion has thus overtaken the exercise of discretion by immigration judges when it comes to questions of relief.
#5. To: nolu chan (#4)
House Republicans can immediately move to pass a House Resolution declaring that Barack Hussein Obama has no constitutional authority to regulate Immigration and Naturalization rules, delegated as a sole authority of the U.S. Congress in Article I – Section 8 enumerated powers of Congress, nor any power to circumvent or subvert the Rule of Constitutional Law via Executive Order. This resolution will render any Executive Order on amnesty “null and void” on arrival, making it an illegal act for Immigration and Naturalization officials to act on that illegal order.
Obama wouldn't sign it. It seems today it takes 2/3 to override the dictators executive fiat.
Congress should pass a bill that says that what Obama is doing is invalid. In the language they should say that this doesn't need the Presidents signature it is full force of law.
Then they should draft orders ordering others not to cooperate.
I know it is not going happen.
Obama is like a street gangster. The Republicans are acting like naive white kids from some rich place. The Republicans need to get street wise too and fight back with a scorched earth campaign.
They should also do their constitutional duty to impeach Obama.
If the Senate finds him not guilty. Impeach him again. For the remainder.
I know its not going to happen. Most Republicans are wusses.
#6. To: A K A Stone (#5)
Obama wouldn't sign it. It seems today it takes 2/3 to override the dictators executive fiat.Congress should pass a bill that says that what Obama is doing is invalid. In the language they should say that this doesn't need the Presidents signature it is full force of law.
A Resolution expressing the sense of the House does not need a signature of the President. It also has no force of law. For example, there was a Senate resolution stating the sense of the Senate that John McCain was a natural born citizen. It had no legal effect.
Congress has no authority to pass a bill and say it is law without being signed by the President. Such a purported law would be considered null and void.
This fight is over the use, extent and reach of the President's power to use prosecutorial discretion. I would find what he is reported to be about to do is unlawful abuse of disrection and a perversion of the law.
However, for defense of such use of purported executive authority, see the following letter from a large group of immigration lawyers to President Obama. This will essentially be the Obama argument.
Note: footnotes have been converted to endnotes.
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September 3, 2014
The President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Re: Executive authority to protect individuals or groups from deportation
Dear Mr. President,
As immigration law teachers and scholars, we write to express our position on the scope of executive branch legal authority to issue an immigration directive to protect individuals or groups from deportation. We do not take a formal position on what steps the administration should take. Rather, we offer legal foundations and history that we believe are critical to understanding how prosecutorial discretion fits into the immigration system.
“Prosecutorial discretion” refers to the Department of Homeland Security's authority to decide how the immigration laws should be applied.1 It is a common, long-accepted legal practice in practically every law enforcement context.2 There are multiple forms of immigration prosecutorial discretion. Discretion covers both agency decisions to refrain from acting on enforcement, like cancelling, serving or filing a charging document or Notice to Appear with the immigration court, as well as decisions to provide a discretionary remedy like granting a stay of removal,3 parole,4 or deferred action.5 A favorable grant of prosecutorial discretion does not provide formal legal status or independent means to obtain permanent residency. It does, however, provide a temporary reprieve from deportation. Some forms of prosecutorial discretion, like deferred action, confer “lawful presence” 6 and the ability to apply for work authorization.
[1]
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The application of prosecutorial discretion to individuals or groups is grounded in the Constitution, and has been part of the immigration system for many years. Furthermore, court decisions, the immigration statute, regulations and policy guidance have recognized prosecutorial discretion dating back to at least the 1970s. Notably, in 2012, the U.S. Supreme Court reiterated: “A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all…”7 Federal courts have also recognized prosecutorial discretion and with respect to deferred action in particular, discussed its reviewability.8
In addition to the courts, Congress, through the Immigration and Nationality Act (“INA” or the “Act”), clearly empowered the Department of Homeland Security (DHS) to make choices about immigration enforcement: “The Secretary of Homeland Security shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens….”9 Congress has also implicitly acknowledged immigration prosecutorial discretion insofar as its appropriations for immigration enforcement have fallen far below the actual number of removable people in the United States.10 Moreover, Congress also recognized legal authority for immigration prosecutorial discretion in INA § 242(g), which bars judicial review of three specific prosecutorial discretion decisions by the agency: decisions to commence removal proceedings, to adjudicate cases, and to execute removal orders.11 Other sections of the Act explicitly name deferred action as a tool for protecting certain victims of abuse, crime or trafficking.12 The Act is guided by binding regulations which themselves indicate the prominence of prosecutorial discretion in immigration law. One regulation expressly defines deferred action as “an act of administrative convenience to the government which gives some cases lower priority” and goes on to authorize work permits for those who receive deferred action.13 The regulations
[2]
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also provide work authorization for those who have been released on an “order of supervision,” another form of prosecutorial discretion for individuals who present compelling equities following a removal order.14
U.S. immigration agencies have a long history of exercising prosecutorial discretion, on both a case-by-case and group basis. For example, deferred action can be requested by any person in the United States and historically has required the individual or her attorney to document compelling humanitarian reasons.15 Even when a program like deferred action has been aimed at a particular group of people, the individual is still required to apply and be screened by the agency on a case-by-case basis; all the facts of the individual case are considered.
Numerous administrations have issued directives using prosecutorial discretion as a tool to protect specifically defined—and often large—classes. In 2005, the George W. Bush administration announced a “deferred action” program for foreign academic students affected by Hurricane Katrina.16 In 2007, the George W. Bush administration exercised prosecutorial discretion in the form of “Deferred Enforcement Departure” for certain Liberians.17 In 1990, the George Bush Sr. administration announced a “Family Fairness” policy to defer deportations and provide work authorization of up to 1.5 million unauthorized spouses and children of immigrants who qualified for legalization under legislation passed by Congress in 1986.18 In 1981, the Ronald Reagan administration issued a form of prosecutorial discretion called “Extended Voluntary Departure” to thousands of Polish nationals.19 The legal sources and history for immigration prosecutorial discretion described above are by no means exhaustive, but
[3]
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underscore the legal authority for an administration to apply prosecutorial discretion to both individuals and groups.
Based on this authority, prosecutorial discretion is often carried out for economic or humanitarian reasons. When economic and human resources are limited, and people with desirable qualities like intellectual or economic promise, strong family ties, long-term residence in the United States, or other humanitarian needs are vulnerable to enforcement, prosecutorial discretion has frequently been exercised. Administrations have recognized this by issuing agency memoranda reaffirming the role of prosecutorial discretion in immigration law. In 1976, President Ford’s Immigration and Naturalization Service (INS) General Counsel Sam Bernsen stated in a legal opinion, “The reasons for the exercise of prosecutorial discretion are both practical and humanitarian. There simply are not enough resources to enforce all of the rules and regulations presently on the books.”20 In 2000, INS Commissioner Doris Meissner issued a memorandum on prosecutorial discretion in immigration matters and asserted that “[s]ervice officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process,” and spelled out the factors that should guide those decisions.21 In 2011, Immigration and Customs Enforcement (now a component of DHS) published guidance known as the “Morton Memo,” outlining more than one dozen factors, including humanitarian factors, for employees to consider in deciding whether discretion should be exercised. These included tender or elderly age, long-time lawful permanent residence, and serious health conditions.22
Some have suggested that the size of the group who may “benefit” from an act of prosecutorial discretion is relevant to its legality. We are unaware of any legal authority for such an assumption. The administration could conceivably decide to cap the number of people who can receive prosecutorial discretion or make the conditions restrictive enough to keep the numbers small, but this would be a policy choice, not a legal question.23 A serious legal question would arise if the administration were to halt all immigration enforcement, because in such a case the justification of resource limitations would not apply. But the Obama administration to date appears to have enforced the immigration law significantly through apprehensions, investigations, detentions and over two million removals.24
In conclusion, we believe the administration has the legal authority to use prosecutorial discretion as a tool for managing resources and protecting individuals residing in and contributing to the United States in meaningful ways. Likewise, when prosecutorial discretion is
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exercised, there is no legal barrier to formalizing that policy decision through sound procedures that include a form application and dissemination of the relevant criteria to the officers charged with implementing the program and to the public. As the Deferred Action for Childhood Arrivals (DACA) program has shown, those kinds of procedures help officers to implement policy decisions fairly and consistently, and they offer the public the transparency that government priority decisions require in a democracy.25
Respectfully yours,
Shoba Sivaprasad Wadhia
Samuel Weiss Faculty Scholar, Clinical Professor of Law
Pennsylvania State University Dickinson School of Law26
[5]
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The remainder of page 5 and pages 6 through 12 are signature pages for the many legal folks who joined in this paper.
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FOTNOTES converted to ENDNOTES
1 See Thomas Aleinikoff, David Martin, Hiroshi Motomura & Maryellen Fullerton, Immigration and Citizenship: Process and Policy 778-88 (7th ed. 2012); Stephen H. Legomsky & Cristina Rodriguez, Immigration and Refugee Law and Policy 629-32 (5th ed. 2009); Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L. J. 243 (2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1476341.
2 Notably, in criminal law, prosecutorial discretion has existed for hundreds of years. It was a common reference point for the immigration agency in early policy documents describing prosecutorial discretion. See Memorandum from Doris Meissner, Immigration and Naturalization Service (INS) Commissioner, Exercising Prosecutorial Discretion 1 (Nov. 17, 2000) [hereinafter Meissner Memo], http://www.legalactioncenter.org/sites/default/files/docs/lac/Meissner-2000-memo.pdf; Sam Bernsen, INS General Counsel, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion (July 15, 1976), http://www.ice.gov/doclib/foia/prosecutorial-discretion/service-exercise-pd.pdf. See also, e.g., Angela J. Davis, Arbitrary Justice (2007); Hiroshi Motomura, Prosecutorial Discretion in Context: How Discretion is Exercised Throughout our Immigration System, American Immigration Council 2-3 (April 2012), http://www.immigrationpolicy.org/sites/default/files/docs/motomura_-_discretion_in_context_04112.pdf.
3 See, e.g., INA § 237(d)(4), http://www.law.cornell.edu/uscode/text/8/1227; 8 C.F.R. § 241.6, http://www.law.cornell.edu/cfr/text/8/241.6.
4 INA § 212(d)(5), http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html.
5 See, e.g., INA § 237(d)(2); 8 C.F.R. § 274a.12(c)(14), http://www.law.cornell.edu/cfr/text/8/274a.12.
6 Memorandum from Donald Neufeld, Lori Scialabba, & Pearl Chang, U.S. Citizenship and Immigration Services (USCIS), Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act (May 6, 2009), http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF; U.S. Citizenship and Immigration Services, Frequently Asked Questions (updated June 5, 2014), http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions.
7 See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012); see also Reno v. ADC, 525 U.S. 471 (1999).
8 See e.g., Lennon v. Immigration & Naturalization Service, 527 F.2d 187, 191 n. 5 (2d Cir. 1975); Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976); Vergel v. INS, 536 F.2d 755 (8th Cir. 1976); David v. INS, 548 F.2d 219 (8th Cir. 1977); Nicholas v. INS, 590 F.2d 802 (9th Cir. 1979).
9 INA § 103(a), http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-769.html.
10 One source suggests that DHS has resources to remove about 400,000 or less than 4% of the total removable population. See John Morton, Director, U.S. Immigration & Customs Enforcement, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011), available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
11 INA § 242(g), http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-6965.html; see also Reno v. ADC, supra note 7.
12 INA § § 237(d)(2), http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-5684.html; 204(a)(1)(D)(i)(II,IV), http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-1272.html.
13 8 C.F.R. § 274a.12(c)(14), http://www.law.cornell.edu/cfr/text/8/274a.12.
14 8 C.F.R. § 274a.12(c)(18), http://www.law.cornell.edu/cfr/text/8/274a.12.
15 For example, of the 698 deferred action cases processed by Immigration and Customs Enforcement between October 1, 2011, and June 30, 2012, the most common humanitarian reasons for a grant were: Presence of a USC dependent; Presence in the United States since childhood; Primary caregiver of an individual who suffers from a serious mental or physical illness; Length of presence in the United States; and Suffering from a serious mental or medical care condition. See Shoba Sivaprasad Wadhia, My Great FOIA Adventure and Discoveries of Deferred Action Cases at ICE, 27 Geo. Immigr. L.J. 345, 356-69 (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2195758.
16 See Shoba Sivaprasad Wadhia, Response, In Defense of DACA, Deferred Action, and the DREAM Act, 91 Tex. L. Rev. 59, n. 46 (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2195735, citing Press Release, U.S. Citizenship and Immigration Services, USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina (Nov. 25, 2005), http://www.uscis.gov/sites/default/files/files/pressrelease/F1Student_11_25_05_PR.pdf.
17 DED Granted Country- Liberia, U.S. Citizenship and Immigration, http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/ded-granted-country-liberia/ded-granted-country-liberia (last visited Aug. 20, 2014).
18 See Marvine Howe, New Policy Aids Families of Aliens, N.Y. Times (March 5, 1990), http://www.nytimes.com/1990/03/05/nyregion/new-policy-aids-families-of-aliens.html; 67 Interpreter Releases 204 (Feb. 26, 1990); 67 Interpreter Releases 153 (Feb. 5, 1990). Bush’s policy followed a narrower 1987 executive order by President Reagan’s immigration commissioner that applied only to children. 64 Interpreter Releases 1191 (Oct. 26, 1987). Congress later in 1990 legislatively provided some of them a path to legalization. Immigration and Nationality Act of 1990, Pub. L. 101-649, Sec. 301, 104 Stat. 4978, http://www.justice.gov/eoir/IMMACT1990.pdf.
19 Legomsky & Rodriguez, Immigration and Refugee Law and Policy 1115-17 (5th ed. 2009); See also David Reimers, Still the Golden Door: The Third World Comes to America 202 (1986).
20 Bernsen, supra note 2.
21 Meissner Memo, supra note 2. Notably, the Meissner memo was a key reference point for related memoranda issued during the George W. Bush administration, among them a 2005 memorandum from Immigration and Customs Enforcement legal head William Howard and a 2007 memo from ICE head Julie Myers on the use of prosecutorial discretion when making decisions about undocumented immigrants who are nursing mothers.
22 Morton, supra note 10.
23 For a broader discussion about the relationship, class size, and constitutionality, see Wadhia, supra note 16.
24 U.S. ICE, FY 2013 ICE Immigration Removals, http://www.ice.gov/removal-statistics/ (last visited Aug. 20, 2014); Marc R. Rosenblum & Doris Meissner, The Deportation Dilemma: Reconciling Tough and Humane Enforcement, Migration Policy Institute (April 2014), http://www.migrationpolicy.org/research/deportation-dilemma-reconciling-tough-humane-enforcement.
25 For a broader discussion of the administrative law values associated with prosecutorial discretion, see Hiroshi Motomura, Immigration Outside the Law 19-55, 185-92 (2014); Shoba Sivaprasad Wadhia, Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law, 10 U. N. H. L. Rev. 1 (2012) (also providing a proposal for designing deferred action procedures), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1879443.
26 All institutional affiliations listed for identification purposes only.
#7. To: Jameson (#3)
As a matter of fact, by the time spring rolls around, this EO will not even be a topic of conversation on right-wing radio. (MHO)Why? because it will not affect the day-to-day lives of 98% of Americans.
Are you this naive, in denial, or merely not quite dealing with a full deck? IF this EO is actually implemented, all hell breaks loose.
It must be nice to live in the HuffPo/MSNBC Land of Make-Believe.
This EO is mostly a political move.....
So is an illegally elected President who routinely shreds the US Constitution to purposely create anarchy and chaos.
#8. To: A K A Stone (#5)
In case you missed this one. Operation Y'all Come!
DHS Grants Temporary Amnesty, Work Permits to Immigrants from Ebola-Ravaged Nationsby Tony Lee
20 Nov 2014, 9:11 AM PDTThe Department of Homeland Security says it will grant temporary amnesty and work permits to immigrants from the three nations most ravaged by the Ebola virus.
According to the U.S. Citizenship and Immigration Services (USCIS), Homeland Security Secretary Jeh Johnson decided to "designate Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS) for 18 months" because it is too dangerous for people to go back to those nations. Those who are in the United States, as of Thursday, from Liberia, Sierra Leone, and Guinea can apply for Temporary Protected Status, which will be "effective Nov. 21, 2014, and will be in effect for 18 months." Nearly 8,000 people are reportedly expected to apply for Temporary Protected Status.
Even those who "last habitually resided" in Liberia, Guinea, and Sierra Leone "will not be removed from the United States" and will be "authorized to work and obtain an Employment Authorization Document (EAD)."
Applicants must have continually resided in the U.S. since November 20, 2014, and have been “continuously physically present in” the country since November 21, 2014, according to USCIS. Those who pose a national security threat or "certain criminal records" will not be eligible. Eligible applicants can also apply for fee waivers.
Thomas Eric Duncan, who was the first person to be diagnosed with and die of Ebola on American soil, was from Liberia.
#9. To: Liberator (#7)
IF this EO is actually implemented, all hell breaks loose.
Just what do you expect will happen? What does "all hell breaks loose" mean? (serious question)
"we are tartets from evil doers!!!" [ and ] U looked up birfer on the dcitionary. It isn't a movie.
#10. To: out damned spot (#0)
House Republicans can immediately move to pass a House Resolution declaring that Barack Hussein Obama has no constitutional authority to regulate Immigration and Naturalization rules, delegated as a sole authority of the U.S. Congress in Article I – Section 8 enumerated powers of Congress, nor any power to circumvent or subvert the Rule of Constitutional Law via Executive Order.This resolution will render any Executive Order on amnesty “null and void” on arrival, making it an illegal act for Immigration and Naturalization officials to act on that illegal order.
With collaborator Boehner's "leadership," what are the odds of THIS happening??
#11. To: Jameson (#9)
Just what do you expect will happen? What does "all hell breaks loose" mean? (serious question)
I guess you'll just have to wait for it and take notes (serious answer.)
#12. To: Jameson (#9)
Do you disagree with the characterization that we have had a President who has routinely shredded the US Constitution to purposely create anarchy and chaos? A President who hates his own country? A President who is a racist? A Divider?
#13. To: Liberator (#11)
I guess you'll just have to wait for it and take notes (serious answer.)
Fair enough -
"we are tartets from evil doers!!!" [ and ] U looked up birfer on the dcitionary. It isn't a movie.
#14. To: Liberator (#12)
Do you disagree with the characterization that we have had a President who has routinely shredded the US Constitution to purposely create anarchy and chaos?
I disagree completely. There has been no anarchy or chaos, and if there is sufficient proof that he has acted unconstitutionally he should be tried. - that hasn't happened in 6 years...
I'm fairly sure that the POTUS has a strong legal team that advise him on matters of the constitutional limits of his actions.
I don't believe that this man is racist, and regarding being a "divider"...I'd say those who most benefit from a divided public are the dividers.....
"we are tartets from evil doers!!!" [ and ] U looked up birfer on the dcitionary. It isn't a movie.
#15. To: Jameson, Liberator (#14)
I'm fairly sure that the POTUS has a strong legal team that advise him on matters of the constitutional limits of his actions.
I am certain that POTUS and every government agency have a strong legal team that will provide legal justification to do anything desired. John "Testicle Crusher" Yoo is an example of justifying the prospective crushing of a child's testicles to extort information from a parent forced to view this legal non-torture.
#16. To: A K A Stone (#6)
A flaw in the executive authority to so broadly assert prosecutorial discretion is that it does not carve out an exception but nullifies the law. The authority is not claimed specifically to immigration law but as a broad inherent power to exert such authority regarding any law. Such an assertion offers up interesting possibilities if carried to its logical absurdity.
The president could issue an executive order that one day per year is designated as a prosecution free day. Any alleged crime committed on the designated day would not be subject to prosecution. Murder? It's the day to get even. Rape? It's all good.
The governor of Texas could issue an executive order designating a specified zone, say one quarter mile on the Texas side of the Rio Grande, as a prosecution free zone. Sharpshooters could set up shop within the zone and take out alien invaders without fear of state prosecution. The executive order could specify that no state funds would be expended to receive reports of alleged crimes in the law free zone, nor to expend any state funds to investigate or prosecute such alleged crimes.
So, where does this inherent power of the president end? Where it is unreasonable or obligates government funding not authorized.
After a historical review, Laurence Tribe points out,
Thus the assumption that prosecution is a quintessentially executive function appears to lack any historical basis. History need not always be decisive, of course; the linguistic plausibility of the claim that prosecuting those who violate the nation's laws is the very essence of executing those laws, coupled with a tradition going back more than a century in which prosecution has been generally viewed as executive in character, might well suffice to cast a considerable constitutional shadow over any device removing the prosecutorial function from ultimate presidential control. Offsetting that shadow, however, is the force of the proposition that the Constitution speaks only to "the distribution of the supreme powers of the State; it simply "does not define the administrative, as distinct from the political, organs of the federal government." In contrast to the President's responsibilities with respect to the military, foreign affairs, and the granting of pardons, the prosecutorial function is not mentioned in Article II and, more specifically, the Constitution says nothing about permissible prosecutorial arrangements.
American Constitutional Law, Third Edition, Volume 1, pp. 697-98.
Also:
He [Justice Douglas] reasoned that, although the federal government undoubtedly had the power to condemn the steel mills—to take them for public use by eminent domain—it also had the constitutional duty to pay just compensation if it did so. And "[t]he branch of government that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the President has effected." Because Article I, § 8, of the Constitution unambiguously gives Congress exclusive power to raise revenues, it followed that only Congress could authorize seizure of the steel mills, and it had not done so.Justice Douglas's understanding of the import of congressional silence contrasts sharply with the apparent view of some of his colleagues in the majority. To Justice Douglas, Congress' silence barred the challenged action by President Truman not because it constituted evidence of congressional will that Truman act otherwise, but because the underlying constitutional rule, as the Justice would have had the Court announce it, made the sort of thing Truman did void absent explicit prior consent by Congress. In Justice Douglas' opinion, the Executive must not be allowed to confront Congress with a fait accompli—a situation in which Congress is bound by the Constitution to raise revenues it might have chosen no to raise in order to satisfy just compensation obligations that it might have chosen not to incur.
Id. at 672
How large an unfunded government funding obligation is being incurred to grant all nature of benefits to about 5 million deportable aliens?
#17. To: Jameson (#14)
If there is sufficient proof that he has acted unconstitutionally he should be tried. - that hasn't happened in 6 years...
You're not paying attention.
Fast and Furious.
IRS.
Benghazi.
0bumaCare Fraud.
Perjury (everytime he opens his mouth.)
Obstruction of Justice.
Abuse of Power.
The active aiding and abetting illegal invasion and unauthorized promise of FREE citizenship and benefits
Circumventing Congress
The list goes on and on....
There has been no anarchy or chaos...
HUH?? We have judicial anarchy and chaos; Health Care anarchy and chaos; Economic anarchy and chaos; Regulatory anarchy and chaos; Monetary anarchy and chaos; Military anarchy and chaos; State Dept anarchy and chaos; Racial anarchy and chaos...
In EVERY sector of life in this America (of which 0buma promised to "transform"), order has been subverted while US Constitutional law and equal power between the Presidency, Congress and Court have been eliminated or ignored. ignored.
#18. To: nolu chan, Jameson (#15)
I am certain that POTUS and every government agency have a strong legal team that will provide legal justification to do anything desired.
Your suspicion is reality. THIS. IS. TYRANNY. The very definition.
John "Testicle Crusher" Yoo is an example of justifying the prospective crushing of a child's testicles to extort information from a parent forced to view this legal non-torture.
You'll be hard-pressed to find Dems or liberals who care an iota about the ramifications of this kind of constitutional abuse. Or ANY constitutional abuse. If they do, they are totally indifferent about it.
That is....UNTIL that is they can no longer cash in their EBT Card, can't watch their favorite Tee-Bee show...or find themselves on the testicular-end of "legal" torture.
#19. To: nolu chan (#16)
How large an unfunded government funding obligation is being incurred to grant all nature of benefits to about 5 million deportable aliens?
Can anyone in this corrupt body of goobermint OR media even address that very question to Herr Kenyan??
A tsunami of parasitic bloodsuckers is about to slam an America already reeling from a rife FREEBIE SOCIETY, yet neither the effete Boehner or ball-less McConnell will touch the obvious.
#20. To: Liberator (#17)
The list goes on and on....
And yet, there have been no charges filed, no grand jury seated, no indictments, nothing except a bunch of tv & radio entertainers and internet "experts" making accusations.
The bar for impeachment was set pretty low (lying about getting hoovers) why haven't articles of impeachment been filed?
- and - It is clear that your understanding of "anarchy and chaos" are different than most...
"we are tartets from evil doers!!!" [ and ] U looked up birfer on the dcitionary. It isn't a movie.
#21. To: Jameson (#20) (Edited)
And yet, there have been no charges filed, no grand jury seated, no indictments, nothing except a bunch of tv & radio entertainers and internet "experts" making accusations.
Don't you find the media blackout of..say...GruberGate suspicious in the least? Or the media blackouts (except for FNC) of all the other obvious scandals?
Up thread you stated, "If there is sufficient proof that he has acted unconstitutionally he should be tried."
Have you been paying ANY attention to the stonewalling, lying, firings, and obstruction of justice regarding the assembled list below? The evidence is overwhelming -- these charages aren't mere "accusations":
Fast and Furious.
IRS.
Benghazi.
0bumaCare Fraud.
Perjury (everytime he opens his mouth.)
Obstruction of Justice.
Abuse of Power.
The active aiding and abetting illegal invasion and unauthorized promise of FREE citizenship and benefits
Circumventing Congress
#22. To: Liberator (#21)
The evidence is overwhelming -- these charges aren't mere "accusations":
Actually accusations are exactly what they are, unfounded accusations.
F & F was identical to operation wide receiver under the bush administration, both a bad idea, neither were criminal.
The Republican led House Intelligence Committee fully investigated the tragedy that occurred in Benghazi - and found "no wrongdoing"
The FBI investigated the IRS "scandal" and returned no criminal charges against anyone, and specifically the president.
Obamacare fraud - So Gruber was a good salesman....not fraud
Perjury (everytime he opens his mouth.)
Obstruction of Justice.
Abuse of Power.
- all very serious criminal actions - not a single criminal charge???
Promise of FREE citizenship and benefits? - please cite your source - never happened.
Circumventing Congress - Executive orders and recess appointments are not unusual and perfectly legal.
Please.....the "evidence" is underwhelming - at best.
I understand that many people, perhaps even you, actually hate our president and wish nothing but bad things for him. However the clutching at conspiracy theories and wailing about every imagined misstep, we hear from some people is just sad.
"we are tartets from evil doers!!!" [ and ] U looked up birfer on the dcitionary. It isn't a movie.
#23. To: Jameson, Liberator (#20)
The bar for impeachment was set pretty low (lying about getting hoovers) why haven't articles of impeachment been filed?
High crimes and misdemeanors is a term of art and does not necessarily connote a criminal act. Basically, it is whatever the Congress says it is - any allegedly behavior which they consider improper.
The only time there was a 2/3rds majority to convict was for Richard Nixon which was why he resigned. There will be no impeachment of Obama because the votes in the Senate are not there.
#24. To: Liberator (#18)
You'll be hard-pressed to find Dems or liberals who care an iota about the ramifications of this kind of constitutional abuse.
Please note that Testicle Crusher Yoo was in the Republican G.W. Bush administration. Neither party is exactly a constitutional watchdog.
#25. To: Liberator (#19)
How large an unfunded government funding obligation is being incurred to grant all nature of benefits to about 5 million deportable aliens?Can anyone in this corrupt body of goobermint OR media even address that very question to Herr Kenyan??
In goobermint, all those in power just want to spend more. They have no interest in limiting their spending authority. Their best laugh line revolves around reducing the rate of growth in government spending and calling it savings.
I heard one brief, and quickly dismissed, mention of the spending aspect on Fox.
I believe Gov. Perry of Texas plans to file a lawsuit based on the notion that Obama's executive order will be forcing great state and federal spending with no congressional authorization.
#26. To: Jameson, Liberator (#22)
Circumventing Congress - Executive orders and recess appointments are not unusual and perfectly legal.
Not all executive orders or purported recess appointments are constitutional. Earlier this year, in NLRB v Canning, a unanimous SCOTUS slam dunked the Obama administration over purported "recess" appointments. In Youngstown Steel, President Truman was slam dunked by the Supreme Court for an unconstitutional executive order.
https://supreme.justia.com/cases/federal/us/573/12-1281/
SUPREME COURT OF THE UNITED STATESSyllabus
NATIONAL LABOR RELATIONS BOARD v. NOEL CANNING et al.
certiorari to the united states court of appeals for the district of columbia circuit
No. 12–1281. Argued January 13, 2014—Decided June 26, 2014
Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. C. Circuit to set aside an order of the National Labor Relations Board, claiming that the Board lacked a quorum because three of the five Board members had been invalidly appointed. The nominations of the three members in question were pending in the Senate when it passed a December 17, 2011, resolution providing for a series of “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923. Invoking the Recess Appointments Clause—which gives the President the power “to fill up all Vacancies that may happen during the Recess of the Senate,” Art. II, §2, cl. 3—the President appointed the three members in question between the January 3 and January 6 pro forma sessions. Noel Canning argued primarily that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. The D. C. Circuit agreed that the appointments fell outside the scope of the Clause, but on different grounds. It held that the phrase “the recess,” as used in the Clause, does not include intra-session recesses, and that the phrase “vacancies that may happen during the recess” applies only to vacancies that first come into existence during a recess.
Held:
1. The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length. Pp. 5–33.
(a) Two background considerations are relevant to the questions here. First, the Recess Appointments Clause is a subsidiary method for appointing officers of the United States. The Founders intended the norm to be the method of appointment in Article II, §2, cl. 2, which requires Senate approval of Presidential nominations, at least for principal officers. The Recess Appointments Clause reflects the tension between the President’s continuous need for “the assistance of subordinates,” Myers v. United States, 272 U. S. 52 , and the Senate’s early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation.
Second, in interpreting the Clause, the Court puts significant weight upon historical practice. The longstanding “practice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401, can inform this Court’s determination of “what the law is” in a separation-of-powers case, Marbury v. Madison, 1 Cranch 137, 176. See also, e.g., Mistretta v. United States, 488 U. S. 361 ; The Pocket Veto Case, 279 U. S. 655 –690. There is a great deal of history to consider here, for Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that such appointments can be both necessary and appropriate in certain circumstances. The Court, in interpreting the Clause for the first time, must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached. Pp. 5–9.
(b) The phrase “the recess of the Senate” applies to both inter-session recess (i.e., breaks between formal sessions of the Senate) and intra-session recesses (i.e., breaks in the midst of a formal session) of substantial length. The constitutional text is ambiguous. Founding-era dictionaries and usages show that the phrase “the recess” can encompass intra-session breaks. And this broader interpretation is demanded by the purpose of the Clause, which is to allow the President to make appointments so as to ensure the continued functioning of the Government while the Senate is away. The Senate is equally away and unavailable to participate in the appointments process during both an inter-session and an intra-session recess. History offers further support for this interpretation. From the founding until the Great Depression, every time the Senate took a substantial, non-holiday intra-session recess, the President made recess appointments. President Andrew Johnson made the first documented intra-session recess appointments in 1867 and 1868, and Presidents made similar appointments in 1921 and 1929. Since 1929, and particularly since the end of World War II, Congress has shortened its inter-session breaks and taken longer and more frequent intra-session breaks; Presidents accordingly have made more intra-session recess appointments. Meanwhile, the Senate has never taken any formal action to deny the validity of intra-session recess appointments. In 1905, the Senate Judiciary Committee defined “the recess” as “the period of time when the Senate” is absent and cannot “participate as a body in making appointments,” S. Rep. No. 4389, 58th Cong., 3d Sess., p. 2, and that functional definition encompasses both intra-session and inter-session recesses. A 1940 law regulating the payment of recess appointees has also been interpreted functionally by the Comptroller General (an officer of the Legislative Branch). In sum, Presidents have made intra-session recess appointments for a century and a half, and the Senate has never taken formal action to oppose them. That practice is long enough to entitle it to “great weight in a proper interpretation” of the constitutional provision. The Pocket Veto Case, supra, at 689.
The Clause does not say how long a recess must be in order to fall within the Clause, but even the Solicitor General concedes that a 3-day recess would be too short. The Adjournments Clause, Art. I, §5, cl. 4, reflects the fact that a 3-day break is not a significant interruption of legislative business. A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power. Moreover, the Court has not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days. There are a few examples of inter-session recess appointments made during recesses of less than 10 days, but these are anomalies. In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. The word “presumptively” leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break. Pp. 9–21.
(c) The phrase “vacancies that may happen during the recess of the Senate,” Art. II, §2, cl. 3, applies both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. Again, the text is ambiguous. As Thomas Jefferson observed, the Clause is “certainly susceptible of [two] constructions.” Letter to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433. It “may mean ‘vacancies that may happen to be’ or ‘may happen to fall’ ” during a recess. Ibid. And, as Attorney General Wirt wrote in 1821, the broader reading is more consonant with the “reason and spirit” of the Clause. 1 Op. Atty. Gen. 632. The purpose of the Clause is to permit the President, who is always acting to execute the law, to obtain the assistance of subordinate officers while the Senate, which acts only in intervals, is unavailable to confirm them. If a vacancy arises too late in the session for the President and Senate to have an opportunity to select a replacement, the narrower reading could paralyze important functions of the Federal Government, particularly at the time of the founding. The broader interpretation ensures that offices needing to be filled can be filled. It does raise a danger that the President may attempt to use the recess-appointment power to circumvent the Senate’s advice and consent role. But the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. It would prevent a President from making any recess appointment to fill a vacancy that arose before a recess, no matter who the official, how dire the need, how uncontroversial the appointment, and how late in the session the office fell vacant.
Historical practice also strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President Madison. Nearly every Attorney General to consider the question has approved the practice, and every President since James Buchanan has made recess appointments to pre-existing vacancies. It is a fair inference from the historical data that a large proportion of recess appointments over our Nation’s history have filled pre-recess vacancies. The Senate Judiciary Committee in 1863 did issue a report disagreeing with the broader interpretation, and Congress passed a law known as the Pay Act prohibiting payment of recess appointments to pre-recess vacancies soon after. However, the Senate subsequently abandoned its hostility. In 1940, the Senate amended the Pay Act to permit payment of recess appointees in circumstances that would be unconstitutional under the narrower interpretation. In short, Presidents have made recess appointments to preexisting vacancies for two centuries, and the Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. The Court is reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long. Pp. 21–33.
2. For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.
This standard is consistent with the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business, as recognized by this Court’s precedents. See Art. I, §5, cl. 2; Marshall Field & Co. v. Clark, 143 U. S. 649 ; United States v. Ballin, 144 U. S. 1 . Although the Senate’s own determination of when it is and is not in session should be given great weight, the Court’s deference cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.
Under the standard set forth here, the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business. The Senate could have conducted business simply by passing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011. See 2011 S. J. 924; Pub. L. 112–78. The Court will not, as the Solicitor General urges, engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause.
Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments. Pp. 33–41.
705 F. 3d 490, affirmed.
Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
https://supreme.justia.com/cases/federal/us/343/579/
U.S. Supreme CourtYoungstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Argued May 12-13, 1952
Decided June 2, 1952*
343 U.S. 579
Syllabus
To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority, but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress; but Congress took no action. It had provided other methods of dealing with such situations, and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed.
Held:
1. Although this case has proceeded no further than the preliminary injunction stage, it is ripe for determination of the constitutional validity of the Executive Order on the record presented. Pp. 343 U. S. 584-585.
(a) Under prior decisions of this Court, there is doubt as to the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use. P. 343 U. S. 585.
(b) Seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. P. 343 U. S. 585.
Page 343 U. S. 580
2. The Executive Order was not authorized by the Constitution or laws of the United States, and it cannot stand. Pp. 343 U. S. 585-589.
(a) There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here. Pp. 343 U. S. 585-586.
(b) In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. P. 343 U. S. 586.
(c) Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution. Pp. 343 U. S. 587-589.
(d) The Order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. P. 343 U. S. 587.
(e) Nor can the Order be sustained because of the several provisions of Article II which grant executive power to the President. Pp. 343 U. S. 587-589.
(f) The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times. Pp. 343 U. S. 587-589.
(g) Even if it be true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress has not thereby lost its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof." Pp. 343 U. S. 588-589.
103 F.Supp. 569, affirmed.
For concurring opinion of MR. JUSTICE FRANKFURTER, see post, p. 343 U. S. 593.
For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 343 U. S. 629.
For concurring opinion of MR. JUSTICE JACKSON, see post, p. 343 U. S. 634.
For concurring opinion of MR. JUSTICE BURTON, see post, p. 343 U. S. 655.
For opinion of MR. JUSTICE CLARK, concurring in the judgment of the Court, see post, p. 343 U. S. 660.
For dissenting opinion of MR. CHIEF JUSTICE VINSON, joined by MR. JUSTICE REED and MR. JUSTICE MINTON, see post, p. 343 U. S. 667.
The District Court issued a preliminary injunction restraining the Secretary of Commerce from carrying out the terms of Executive Order No. 10340, 16 Fed.Reg.
Page 343 U. S. 581
3503. 103 F.Supp. 569. The Court of Appeals issued a stay. 90 U.S.App.D.C. ___, 197 F.2d 582. This Court granted certiorari. 343 U. S. 937. The judgment of the District Court is affirmed, p. 343 U. S. 589.
Page 343 U. S. 582
#27. To: nolu chan (#26)
Not all executive orders or purported recess appointments are constitutional. Earlier this year, in NLRB v Canning, a unanimous SCOTUS slam dunked the Obama administration over purported "recess" appointments
Woo Hoo!!! The law has spoken!!! The system works! SCOTUS Slam dunked the Obama administration!!!!
Thank you Jesus!!!
and............President Obama is.........still president.
Well shit! Now what are you going to do????
"we are tartets from evil doers!!!" [ and ] U looked up birfer on the dcitionary. It isn't a movie.
#28. To: Jameson (#27)
Woo Hoo!!! The law has spoken!!! The system works! SCOTUS Slam dunked the Obama administration!!!!Thank you Jesus!!!
and....
... all of his non-recess appointments were declared null and void. All the appointees' actions were declared null and void.
Should his executive order be found unconstitutional, it would likewise be found null and void, ab initio, as if they never existed.
The Court would have condemned him to eating Michelle school lunches for the remainder of his administration but that would be cruel and unusual punishment.
#29. To: A K A Stone (#5)
FYI -
The Dem immigration bill in the Senate, S. 744, passed 68-32 and died.
It was "blue slipped" and never considered in the House.
When, in the opinion of the House of Representatives, a Senate-introduced bill that raises revenue or appropriates money is passed by the Senate and sent to the House for its consideration, the House places a blue slip on the legislation that notes the House's constitutional prerogative and immediately returns it to the Senate without taking further action. This blue-slipping procedure, done by an order of the House, is routinely completed to enforce its interpretation that the House is the sole body to introduce revenue or appropriations legislation. The failure of the House to consider the legislation means it cannot become a law. This tactic is historically to be of great use to the House and, as a practical matter, the Senate does not introduce tax or revenue measures to avoid a blue slip.
It was an unconstitutional bill originated in the Senate and raising revenue.
http://thomas.loc.gov/cgi-bin/bdquery/z?d113:SN00744:@@@S
S. 744Latest Title: Border Security, Economic Opportunity, and Immigration Modernization Act
Sponsor: Sen Schumer, Charles E. [NY] (introduced 4/16/2013) Cosponsors (7)
Related Bills: H.R.5, H.R.490, H.R.1596, H.R.2270, H.R.2624, H.R.3130, H.R.3344, H.R.3431, H.R.3568, H.R.3914, H.R.4460, H.R.4951, H.R.4961, S.223, S.616, S.891, S.1889, S.2561, S.2781
Latest Major Action: 6/27/2013 Passed Senate with an amendment by Yea-Nay Vote. 68 - 32. Record Vote Number: 168.
Latest Action: 6/27/2013 Senate ordered measure printed as passed. Senate Reports: 113-40
#30. To: Liberator (#11)
Just what do you expect will happen? What does "all hell breaks loose" mean?
Ok, so President Obama has made is announcement.....
Now...SHTF!!! RIGHT!! All hell has broken loose!!!
There was a riot!! That's right!!! at Krogers!!!! ... well not really a riot... more of an angry mob!!! Yeah!!
well... really... not so angry... and not quite a mob... but it was awful!!! Yes!! out of hand!! really, really awful!!!
except actually not so awful...
Anyway I'm really sure that this was all about that terrible no-good President Obama!!! that's right!! and his "really not at all like President Reagan's amnesty" Amnesty!!!
It absolutely, positively had nothing at all to do with Frozen ButterBall turkey's on sale for $0.79 a pound!! Nothing at all!!!!
"we are tartets from evil doers!!!" [ and ] U looked up birfer on the dcitionary. It isn't a movie.
#31. To: Jameson (#30)
Ok, so President Obama has made is announcement.....Now...SHTF!!! RIGHT!! All hell has broken loose!!!
An announcement isn't exactly the "action" part of the equation. Did you think it would happen minutes after the Kenyan's Hitlerian dictate? HA! (And since you could hardly contain your swooning ecstasy over 0buma violation of the USCON, I hope you at least doubled up on the condoms during his illegal spiel.)
Anyway I'm really sure that this was all about that terrible no-good President Obama!!! that's right!! and his "really not at all like President Reagan's amnesty" Amnesty!!!
It is....ONLY in lib-Dem-Commie Fairy Tale lore.
Here's an encore post and "teachable moment" (in case you hadn't yet seen it:
"Reagan's" Amnesty back in 1986 was an actual piece of bi-partisan Congressional legislation. NOT a dictatorial EO like 0buma's that bypassed Congress. You Dems and Libs are so utterly devoid of any intellectual honesty it'd be comical if it weren't so tragic.
That legislation LIMITED the so-called "Amnesty" to 3 million Illegals. NOT the uncountable 40 + million Illegals AND their parasitic anchor babies and relatives your Fuehrer and the Dem Party endorse. MOREOVER, it granted no work permits, Social Security numbers, driver’s licenses, or FREE health care and FREE STUFF.
Moreover, in exchange for NOT VETO-ing this crappy legislation, the Dem-led Congress promised to secure and control the borders while sanctions against employers who hired illegal immigrants would be enforced. NONE OF IT HAPPENED because the Dem-controlled Congresses LIED. (What else is new??) Reagan would later regret this as one of the worse pieces of legislation that ever passed his desk. It was also promised that THIS Amnesty was supposed to be the Final and ONLY "Amnesty" ever to be granted.
Despite learning the truth of the matter (0buma /= Reagan), like all radical lib and Dem zombies, you'll merely continue marinating in your delusions, lies, and collaboration with traitors. Btw -- as a Dem troll, do you get paid per post for catapulting propaganda that further enables your Fuehrer to destroy the USA?
#32. To: nolu chan (#28)
... all of his non-recess appointments were declared null and void. All the appointees' actions were declared null and void.Should his executive order be found unconstitutional, it would likewise be found null and void, ab initio, as if they never existed.
But...but...THAT would embarrass the Office of the fake Presidency, the fraud that is Congress, the joke that is the SCOTUS, and the charade that is the Media...
...thus we should assume any admissions that for 6+ years unconstitutional, illegal appointments, legislation, and EOs were enacted and conceded until the nation has been fully cratered after two full Twilight Zone terms. UNLESS the GOPe Big Boys decide to shed their pampers, exposed their slowly descend testicles.
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