NEW YORK – Did President Obama just set up Department of Homeland Security Secretary Jeh Johnson to be a candidate for impeachment instead of himself if conservatives convince the Republican majorities in the House and the Senate that his “executive actions” on immigration are unconstitutional?
The inquiry begins with the question: Where are the executive orders Obama supposedly signed to permit up to 5 million parents of young illegal aliens to remain in the United States for three years?
The White House appears to have engaged in administrative sleight of hand, changing U.S. immigration law not by executive order but by a memorandum “exercising prosecutorial discretion” Johnson signed the day of Obama’s Nov. 20 nationwide address that so far has not been filed in the Federal Register.
Tom Fitton, president of Washington-based watchdog institution Judicial Watch, told WND in an interview the legal status of Johnson’s memo is a serious constitutional question that deserves to be adjudicated.
“The entire implementing authority involves a memorandum published by DHS Secretary Jeh Johnson that changes the immigration law, directing federal money to be spent that has not been appropriated by Congress,” he said.
“In my view, there is a serious question whether Jeh Johnson should be impeached for taking this action, and a criminal investigation should be initiated to determine how and why federal funds are being misappropriated,” he declared.
Fitton said DHS “is being hijacked to implement actions Congress has neither authorized nor appropriated funds to accomplish.”
“All remedy options need to be on the table when attacking this threat to the Constitution,” he said.
On Wednesday, attorneys general in 17 states joined in a lawsuit filed by Texas attorney general and governor-elect Greg Abbott that charges the Obama’s immigration action violated the U.S. Constitution’s “Take Care” clause and failed to follow the Administrative Procedure Act’s guidelines for implementing new policies, including a comment period to outline the changes’ benefits, National Review’s Andrew Johnson reported.
Abbot said in a statement the president “is abdicating his responsibility to faithfully enforce laws that were duly enacted by Congress and attempting to rewrite immigration laws, which he has no authority to do — something the president himself has previously admitted.”
The 16 other states are Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Utah, West Virginia and Wisconsin.
Showtime in Vegas
The White House drew attention to President Obama’s trip to Las Vegas Nov. 21, where he was expected to sign two executive orders that would revise his Deferred Action for Childhood Arrivals, or DACA. But a close examination of the executive actions Obama actually signed shows they had nothing to do with implementing the move he announced in his Nov. 20 White House address to the nation.
According to the White House website, on Nov. 21 Obama signed a presidential proclamation titled “Creating Welcoming Communities Fully Integrating Immigrants and Refugees” and a presidential memorandum titled “Modernizing and Streamlining the U.S. Immigration Visa System for the 21st Century.”
The first of the presidential actions, “Creating Welcoming Communities Fully Integrating Immigrants and Refugees,” filed Nov. 26 in the Federal Register at Vol. 79, No. 228, in the category “Presidential Documents” at page 70769, created a White House Task Force on New Americans to “engage with community, business, and faith leaders, as well as State and local elected officials.” The task force is designed to “help determine additional steps the Federal Government can take to ensure its programs and policies are serving diverse communities that include new Americans.”
The second of the presidential actions, “Modernizing and Streamlining the U.S. Immigration Visa System for the 21st Century,” filed Nov. 26 in the Federal Register at Vol. 79, No. 228, in the category “Presidential Documents” at page 70765, empowered the secretaries of State and Homeland Security, in consultation with the director of the Office of Management and Budget, the director of the National Economic Council, the assistant to the president for homeland security and counterterrorism, the director of the Domestic Policy Council, the director of the Office of Science and Technology Policy, the attorney general, and the secretaries of Agriculture, Commerce, Labor and Education, to make a series of recommendations “to reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system” of issuing immigrant and non-immigrant visas.
The only Obama administration document relevant to altering DACA to accommodate the legislative changes announced in Obama’s address to the nation Nov. 21 is a DHS memorandum signed by DHS Secretary Johnson titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents.”
The Federal Register lists 26 executive orders President Obama has signed this year, with the most recent being “Improving the Security of Consumer Financial Transactions,” signed Oct. 17 and published in the Federal Register Oct. 23.
The last item DHS filed in the Federal Register relevant to DACA was a form revision filed April 4 that had nothing to do with the actions Obama announced Nov. 20.
Who has the authority?
“What is clear is that Jeh Johnson was the vehicle chosen by the Obama administration to extend temporary residency status and work authorization to millions of illegal immigrants currently in the country,” Fitton told WND.
The “Guide to the Federal Rulemaking Process” published by the Office of the Federal Register specifies agencies “get their authority to issue regulations from laws (statutes) enacted by Congress.”
The guide states further:
In some cases, the President may delegate existing Presidential authority to an agency. Typically, when Congress passes a law to create an agency, it grants that agency general authority to regulate certain activities within our society. Congress may also pass a law that more specifically directs an agency to solve a particular problem or accomplish a certain goal.
An agency must not take action that goes beyond its statutory authority or violates the Constitution. Agencies must follow an open public process when they issue regulations, according to the Administrative Procedure Act (APA). This includes publishing a statement of rulemaking authority in the Federal Register for all proposed and final rules.
Johnson’s Nov. 20 implementing memo is technically the announcement of a decision to exercise prosecutorial discretion, not a change in rules.
“Deferred action is a long-standing administrative mechanism dating back decades, by which the Secretary of Homeland Security may defer the removal of an undocumented immigrant for a period of time,” Johnson’s memo noted.
Fitton said an important question is whether or not the Johnson memo is subject to public comment provisions.
“This is a legal question given the impact of the Johnson memo is to stop effectively deportations of illegal immigrants that have been in the United States prior to Jan. 1, 2010, and are parents of children who are U.S. citizens or legal U.S. residents,” he said.
Johnson’s memo attempts to make the deferred prosecution decision announced for the DACA program equivalent to an executive action taken by two recent Republican presidents.
“A form of administrative relief similar to deferred action, known then as ‘indefinite voluntary departure,’ was originally authorized by the Reagan and Bush administrations to defer the deportations of an estimated 1.5 million undocumented spouses and minor children who did not qualify for legalization under the Immigration Reform and Control Act of 1986,” the memo said “Known as the ‘Family Fairness’ program, the policy was specifically implemented to promote the humane enforcement of the law and ensure family unity.”
The memo then attempted to further distinguish deferred action from rulemaking by noting the temporary aspects of the prosecutorial discretion involved:
Deferred action is a form of prosecutorial discretion by which the Secretary deprioritizes an individual’s case for humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission. As an act of prosecutorial discretion, deferred action is legally available so long as it is granted on a case-by-case basis, and it may be terminated at any time at the agency’s discretion. Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card.
Finally, the memo acknowledges that the actions taken with respect to the DACA program are not specifically authorized in any legislation passed by Congress and signed into law by the president.
Although deferred action is not expressly conferred by statute, the practice is referenced and therefore endorsed by implication in several federal statutes.
Fitton told WND that while Obama has maintained that his administration has issued executive orders just as prior administrations have done,” he’s now saying the memo signed by Johnson ‘”changed the law.”
In a speech in Chicago after his Nov. 20 announcement, Obama told hecklers, “I took action to change the law.” Confronted with the statement by reporters, White House press secretary Josh Earnest insisted the president was “speaking colloquially.”
But Fitton said there is nothing comparable to Obama’s admission in recent presidential history.
“Obama’s statement is an admission of tyranny.”