Political Pistachio

Blog Home of the Writer and AM and FM Radio Host, Douglas V. Gibbs.
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Saturday, August 20, 2011

Can Obama Constitutionally Halt The Deportation of Non-Criminal Immigrants (Illegal Aliens)?


By Douglas V. Gibbs

A listener to the Constitution Speaker Radio program on KCAA 1050 AM in Temecula writes:

(he attached a story from ABC News regarding how the Obama Administration is halting the deportation of non-criminal illegal aliens)

What does our constitution say about protecting our borders from enemies or migrants? Does the federal government even have authority to mandate or restrict a state from accepting or denying a migrant?

I answered:


Article IV, Section 4 indicates that the federal government shall "protect each of them (states) from invasion" - which I take to include securing the border. This, in line with Article I, Section 8, Clause 15 allows the federal government to use armed National Guard service members (National Guard is the "organized militia") to patrol the border, in addition to the existing Border Patrol forces. . . to "repel invasions." An unorganized militia (as defined by Title 10 of the U.S. Code) can also be used to patrol the border, which would include something like the "Minutemen" group that does it now, or concerned citizens.

Article I, Section 8, Clause 4 tasks the federal government with establishing a uniform rule for naturalization, which means the States cannot alter who can be naturalized from that rule.

Article I, Section 9, Clause 1 allows the federal government to make legislation prohibiting who can migrate to this country. Note it does not say the federal government can tell the States who they have to let in.

All other immigration issues belong to the States. Immigration is a concurrent jurisdiction, for the most part, much like a principal and teacher can both issue detentions, but for different reasons or under different scenarios.

I want you to note that in Article I, Section 9 the federal government has the authority prohibit through legislation who can immigrate into this country. Note that the article you sent me indicates that the Obama Administration halted the deportation of non-violent immigrants (illegal aliens). The Obama Administration is breaking the law. Only Congress can change the law on the books by legislation. Current immigration law requires the people being halted from being deported by the Obama Administration to be deported. If Obama wants these people to be able to stay in the country, he has to ask Congress to change the law. Congress would then, if they decide to follow the President's request, propose a bill and that bill would need to be approved by both houses before it could go to the President for signature, and change the law to allow the President to execute the law. He is currently executing in violation of the current law on the books.

Hope this answers your question.

(added note: this is yet another example of Obama acting without consent of Congress. He is trying to make Congress irrelevant.)

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