Joe Biden’s Executive Amnesty Is Illegal, Unjust and Self-Defeating

During the Constitution ratification debates between the Federalists (who supported ratification) and the Anti-Federalists (who opposed it), one of the most strident areas of disagreement was the extent to which the proposed position of president of the United States was actually an ersatz king. Leading Anti-Federalists thought the new president would be a thinly veiled monarch. In response, leading Federalists—including those who would eventually hold radically different views of presidential powers—joined forces to assuage Anti-Federalist concerns.

Multiple essays of The Federalist Papers, the Federalists’ eponymous effort to publicly promote the ratification of the Constitution, were dedicated to explaining the nature of the office of the presidency. In Federalist No. 69, Alexander Hamilton—who would in subsequent years take a much stronger view of Article II presidential power than his contemporary and Federalist Papers coauthor James Madison—dedicated an entire essay to arguing that the president is not nearly as powerful as the British king. In making his case, Hamilton noted that the president “can confer no privileges whatever,” whereas the king “can make denizens of aliens” and “noblemen of commoners.”

This must be emphasized: During the fledgling nation’s constitutional ratification debates, which assumed existential importance after the failure of the Articles of Confederation, Federalists felt compelled to distinguish the presidency from the Crown on the grounds that the king “can make denizens of aliens” but the president has no such power. Indeed, the Framers cared so much about this that they explicitly accorded to Congress, in Article I, Section 8 of the Constitution, the power to “establish a uniform rule of naturalization.” The message was clear: The president is not a king.

Well, so much for that. This week, President Joe Biden became the second straight Democratic president to unilaterally engage, absent any authorization from the Congress, in the quintessentially kingly act of “mak[ing] denizens of aliens.”

In June 2012, former President Barack Obama issued his signature Deferred Action for Childhood Arrivals executive amnesty, notwithstanding the fact that Congress had expressly rejected the DREAM Act amnesty legislation on which DACA was predicated. Two years later, Obama followed it up with Deferred Action for Parents of Americans, another executive amnesty that lacked any congressional authorizing legislation. Former President Donald Trump repealed DAPA in 2017; DACA has consistently been stymied by the federal courts, including the 5th Circuit Court of Appeals in 2022.

This Tuesday, Biden joined his former boss in unilaterally promulgating a mass amnesty for the ages—this time, for an estimated half million illegal aliens now married to U.S. citizens and who have lived in the U.S. for a decade or more. In a radical departure from extant law, Biden’s amnesty would allow those illegal aliens to remain in the U.S. while they seek a green card—as opposed to forcing them, as the law requires, to return to their home country while applying for permanent residency (and thus eventually citizenship).

Biden’s amnesty is blatantly, flagrantly and offensively unconstitutional. Only Congress, not the president, can “establish a uniform rule of naturalization.” Prosecutorial discretion, which Biden (like Obama before him) laughably invokes, is only legitimate when applied on an individualized, case-by-case basis. Prosecutorial discretion does not apply to a blanket refusal to enforce large swaths of immigration law—an act which itself violates the president’s Article II, Section 3 prerogative to “take care that the laws be faithfully executed.” The president has plenary statutory authority under 8 U.S.C. 1201 to deport any alien (legal or illegal) at any time for any reason, but he does not have any reciprocal power to naturalize aliens outside of Congress.

In addition to its lawlessness, Biden’s amnesty is also profoundly unjust. It rewards lawbreaking by prioritizing those who break the law over those who follow the law. It saps national sovereignty and vitiates the single most consequential decision any self-governing people can ever make: who else is allowed to join the community. It magnetizes illicit mass migration, incentivizing millions to throw in their lot with nefarious criminal cartels, human trafficking rings, and smugglers in the hopes that they too can cross our border in the shadows, plead “asylum” and attain amnesty. The cartels are enriched and emboldened; Americans, by contrast, pay for it in the form of increased crime, drained public sources, lost jobs and cultural balkanization.

Unsurprisingly, recent public polling shows the American people have had enough. A much-discussed CBS/YouGov poll taken earlier this month revealed that a whopping 62 percent of Americans—including 53 percent of Hispanics—support deporting all illegal aliens. Biden’s executive amnesty is thus not merely illegal and immoral. It will also backfire.

Biden, like Obama before him, may view himself as a king. But unlike Britain’s king, America’s president must face the voters when he seeks reelection. And therein lies the rub.


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