Advocates for Illegal Aliens Declare War on the American Justice System

Rear view of themis statueThe American justice system exists to deliver fair and timely justice to those accused of wrongdoing and to their victims. The integrity of the judicial process is the foundation of any enlightened society. That bedrock foundation of our republic will soon be under attack by elected officials and tax-exempt foundations who openly vow to wage “lawfare” on our federal courts.

The assault on the federal judicial system is being led by Luis Gutierrez, who ostensibly represents the citizens of Illinois’ 4th congressional district, but has proclaimed himself to be the representative of the nation’s illegal alien population. Gutierrez recently stated that if Donald Trump acts to rescind President Obama’s unconstitutional Deferred Action for Childhood Arrivals (DACA) amnesty program he will consider it to be a “declaration of war.” In addition, Gutierrez has threatened that if the new president attempts to carry out the laws of the United States and begin deporting illegal aliens, “then the people he wants to deport should say, ‘I want my day in court before a judge.’ You have to paralyze the system.”

In truth, the federal justice system is already being paralyzed by deportable aliens and their advocates. More than half of all cases pending before federal courts are immigration related and there is a backlog of more than half a million cases of people fighting to remain in this country. The prospect of a member of the House Judiciary Committee openly calling upon illegal aliens to further paralyze the federal judicial system if the president tries to enforce the nation’s laws, borders on sedition.

But Gutierrez will not be waging a one-man assault on the federal courts. He is already being joined in the war against the judicial system by the California Legislature, which has been engaging in its own long-running war on sanity, not to mention immigration enforcement. State Senator Ben Hueso (D-San Diego) introduced the Due Process for All Act (SB 6) earlier this month that “would create a state program to fund legal representation for those facing deportation.” Hueso’s Assembly colleague, Rob Bonta (D-Oakland), has offered a companion bill (AB 3) that “would create state-funded regional centers to train defense attorneys and public defender’s offices on immigration law and the consequences of criminal convictions.” Needless to say, California taxpayers would foot the bill for these services. Similar efforts are underway in New York.

Immigration “lawfare” isn’t exactly hurting for cash even in the absence of publicly funded effort to paralyze the federal courts. Last summer’s leaks of a cache of documents from billionaire George Soros’s Open Society Foundation (OSF) detail countless millions of tax exempt foundation dollars (from OSF and other prominent groups) already being dedicated to the war against immigration enforcement.

The undeniable intent of the open borders zealots is to bring the nation’s court system to its knees in order to prevent the duly enacted laws of the United States from being enforced. That challenge to one of the essential pillars of our civilization is an existential threat that must be addressed.

Can Obama Pardon Illegal Aliens?

penandphonePresident-elect Donald Trump has promised to end President Obama’s Deferred Action for Children of Aliens program (DACA).  As a result, advocacy groups have been calling on President Obama to pardon the approximately 750,000 applicants approved under DACA. According to the pro-illegal alien narrative, this would place the DACA applicants on a “path to citizenship.”

But there is a problem with this narrative: the pardon power doesn’t apply to civil offenses.  Although crimes are most often perpetrated upon individuals, criminal acts are considered to be offenses against the community as a whole. Criminals are prosecuted in the name of the government, e.g., State v. John Doe. And they are punished by imprisonment, in order to deter antisocial behavior.

Civil violations consist of behaviors that interfere with the administrative interests of the state. They typically include violations of building codes and the failure to maintain one’s property in a safe condition, and similar acts. Rather than punishing them with imprisonment, the state imposes fines to recover some of the expenses caused by the violation.

Article II, Section 2, Clause 1 of the Constitution is very clear that, “The President…shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in cases of impeachment.” In other words, the president can pardon federal criminal offenses, but not civil violations. While Improper Entry by an Alien is a misdemeanor crime, unlawful presence in the United States is a civil violation. Therefore, a presidential pardon would erase the crime of illegally entering the United States but would have no effect on the civil offense of unlawfully remaining.

The presidential power to pardon derives from old English law. It served as a mechanism to restore the rights lost by a felon who, although guilty of a crime, had fallen prey to extenuating circumstances. It was not a tool for the king to willfully evade those laws he disliked. And such an abuse would likely have led to his overthrow.

Frustration with President Obama’s misuse of executive authority appears to have been one of the factors that caused American voters to elect Donald Trump president. Rather than compound his past errors with an “amnesty-by-pardon” scheme, President Obama should heed the will of the people and let the Trump administration sort out the mess caused by his illegal DACA policies.

United States v. Texas: Observations

Gavel, scales of justice and law booksLast Thursday, in a 4-4 split, the United States Supreme Court upheld a lower court’s injunction blocking implementation of President Obama’s Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA+) programs. Yet to be decided is whether the proposed DAPA and DACA+ programs exceeded the constitutional powers of the president. This situation provokes the following thoughts:

First. It should be kept in mind that the judge in Texas who issued the injunction would not have done so if he believed that the states did not have a valid constitutional argument that the president was attempting to exceed his authority. So, a future decision on the merits of the states’ case may be presumed to also go against the president’s action. The same may be said with regard to any appeal process.

Second. The argument that the president was exceeding his constitutional authority may be applied equally to his earlier action in promulgating the 2012 Deferred Action for Childhood Arrivals (DACA) program. That program has already been implemented, so it is too late to prevent it with an injunction. Nevertheless, a basis still exists for challenging the program as unconstitutional.

Third. The power that the president was usurping was the power to set the nation’s immigration policy, and that is constitutionally assigned to the legislative branch. The failure of Congress to act against DACA and DAPA demonstrates a failure of congressional leadership on immigration. That, however, is no excuse for the absence of any serious attempt by Congress to uphold its constitutional responsibilities.

Last. According to the June 24 Washington Post, presumptive Democratic presidential candidate Clinton commented in response to the Supreme Court action, “I believe we are stronger when we embrace immigrants, not denigrate them” Note that this comment ignores any distinction between legal immigrants invited into the country and those who violate the nation’s law by taking up illegal residence. The failure to distinguish between immigrants and illegal aliens is tantamount to endorsing an open border. And, it seems clear that a president who supported an open border would be seen abroad as inviting illegal immigration.

Federal Judge Scolds DOJ, Requires Government Lawyers to Take Ethics Courses

In an order issued by the Federal District Court for the Southern District of Texas last week, Judge Andrew S. Hanen reprimanded the Department of Justice (DOJ) for intentionally deceiving the court in the Texas v. United States case.

The case, brought by the State of Texas and 25 other states, challenges the Obama Administration’s unilateral expansion of its Deferred Action for Childhood Arrivals (DACA) program and creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. Together, the programs would allow millions of illegal aliens living in the United States to escape enforcement of immigration law.

Judge Hanen condemned the government lawyers for misrepresenting actions taken by the federal government following the court’s order to halt implementation of the programs until the case is decided on the merits. Following the court’s order, DOJ attorneys informed the court that the federal government had already issued 108,000 work permits pursuant to the expanded DACA program, a fact that the attorneys had repeatedly omitted in direct questioning by the judge. Then, in May 2015, DOJ attorneys informed the court that 2,000 work permits were issued in direct violation of the court’s orders to halt the expansion.

“Clearly, there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department,” Judge Hanen wrote in the order. Specifically, the order requires:

  • The DOJ attorneys to annually attend legal ethics courses if they appear in a court in any of the 26 plaintiff states;
  • The U.S. Attorney General to appoint a person within DOJ to ensure compliance with the order’s course requirements;
  • The U.S. Attorney General to report what steps she has taken to ensure DOJ lawyers tell the truth to the court and to opposing counsel; and
  • The U.S. Attorney General to report to the court within 60 days a comprehensive plan to prevent unethical conduct from reoccurring.

Judge Hanen also ordered the federal government to submit a list to the court of each individual given work permits under the DACA expansion during the time period in which the DOJ attorneys promised that no benefits had been granted (November 20, 2014 – March 3, 2015). The court plans to keep the list sealed unless a plaintiff state shows actual or imminent harm that can be prevented by release of the information to the state. Finally, the court stated its intention to revoke what’s referred to as the pro hac vice status of the DOJ attorneys who acted unethically, which will remove their ability to appear in a court in a state in which they are not licensed to practice law.

The Supreme Court of the United States is currently deliberating the merits of the case. The Court is expected to rule near the end of its term in June.

House Votes to File Amicus Brief in United States v. Texas

supreme_court_rotator_lgToday, the House voted 234 to 186 on a resolution to file an amicus brief in the United States v. Texas Supreme Court case challenging President Obama’s authority to grant executive amnesty to millions of illegal aliens without congressional approval.

The attempt to file an amicus brief on behalf of the entire chamber is an “extraordinary step” and something that “has never been done before.”  The House decided to get involved only after the Supreme Court asked the parties to present arguments beyond the Administration’s petition for certiorari on a whether DAPA and expanded DACA “violates the Take Care Clause of the Constitution, Art. II, §3.”

FAIR is supportive of the House’s efforts to file the amicus brief but believes these efforts to be incomplete.  We have been urging Congress to use its power of the purse to end Obama’s amnesty and restore Secure Communities as well as pass standalone enforcement legislation.

Recommended Reading:

Why United States v. Texas is the most important case the Court will decide this year

U.S. v. Texas Resources