Mark Weaver from our firm wrote a thought-provoking op-ed on who ought to make immigration policy. The piece was published by both the Columbus Dispatch and the Cincinnati Enquirer. Read below or click here.
Stop looking to the White House for new immigration policy
By Mark R. Weaver
We teach our children that cheating in school is dishonest. We tell them it’s wrong and self-defeating to seek the outcome – a better grade – without achieving the very purpose of the enterprise: learning.
I thought about that concept this week as the left and the right engaged in social media slap fights over President Trump’s decision to end what President Obama called a “temporary, stop-gap measure” of allowing certain children of illegal immigrants to remain in America. My own opinion about the fate of so-called DACA “dreamers” takes a back seat to my larger concern – who determines the policy?
Our founding fathers thought deeply about the kind of nation they wanted to build, given that they’d just parachuted out of what many believed was the greatest nation on earth. They knew future generations would scuffle and scrap about how government should operate, so they gave us the Constitution. That document acts as the guardrails along the path of managing the worst impulses of tyrants and tyrants in training.
A president might want to make treaties without interference, but the Constitution requires Senate ratification. Congress could try to make budget decisions alone, but the Constitution gives the president veto power. And federal judges may wish to gavel their whims into law but the Constitution allows Congress to impeach them if they fall short of “good behavior.”
Article I of the Constitution gives “all legislative powers” to Congress. Unlike so many constitutional questions, that are as clear as the vista from a midnight sandstorm, who gets to decide federal policy is straightforward: 435 representatives and 100 senators.
That’s why the policy question of whether bank robbery should be a federal crime belongs to Congress. What should the federal tax rate be? Ask Congress. And, most pertinently now, whether citizens of other countries can come to America and permanently live here is a question unequivocally left to Congress.
These are policy choices, and the founders wanted them to be made by just one part of government – the legislative branch. It makes sense. That’s the branch most immediately accountable to voters with elections for all of the House and one-third of the Senate every two years.
Alexander Hamilton was a prolific booster of this approach. In fact, if you loved him on Broadway, you’ll love him even more in the Federalist Papers, the pro-Constitution tracts he co-authored in 1788. Hamilton said (sorry, this was before he learned to rap): “It is essential to liberty that the government, in general, should have a common interest … and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.”
Federal law currently makes it illegal for a foreign national to remain here without permission. Indeed, the law that every elected official swore to uphold says that people here illegally “shall upon the order of the Attorney General be removed.” That’s the law currently in force, enacted by Congress who, we must presume, acted with the legitimate mandate of those who elected them.
There’s only one valid way to undo that law – pressure Congress to pass a different law. If this sounds a bit like eighth-grade civics, that’s because it is. But far too many of those shouting and shrieking over desired policy outcomes are ignoring these civic truths. They want what they want and to heck with the process. Yet even when Congress fails to enact the laws we want, our sole legal remedy is to change the Congress.
Which brings us back to the student who wants the good grade but doesn’t want to get it the way the system was designed to give it – by studying and learning. The substantive process matters – often as much as the result.
There may be good policy reasons to allow “dreamers” to stay here. If that’s your viewpoint, go instruct your member of Congress. If Congress doesn’t fulfill your request, go elect a congressional majority that will.
Good ideas that have broad support tend to get passed into law, if only because legislators want to avoid the ire of angry constituents demanding action. When Congress doesn’t act, it’s fair to assume that not enough people have pressured them to do so.
President Obama’s executive order was an end-around run of the policy-making structure given to us by Hamilton and his supporting cast. Bypassing that system by seeking a desired policy result from someone other than the designated policy maker is anti-democratic, unconstitutional, and – it’s cheating.
Mark R. Weaver is a Columbus attorney and former deputy attorney general of Ohio. He teaches at The Ohio State University College of Law and his new book is “A Wordsmith’s Work.” Twitter: @MarkRWeaver.