Should a President Violate the Constitution?


Yesterday President Obama hit the hornets’ nest as far as illegal immigration is concerned. He announced that for illegal immigrants under the age of 30 who entered our nation before they were 16 years old (generally by a parent or adult) would not be threatened with deportation. How can the President single-handedly pass laws and forgo the legislative branch? Well, he can’t, but being the executive branch he can choose not to act on certain laws. Thus, the law hasn’t changed, but the enforcement of the law has changed. While people want to act as though Mr. Obama is ruining our Constitution by doing this, the reality is this has happened quite a few times in our nation’s history (it happens most-often when a president involves us in a police action without consulting Congressional support for a declaration of war). Regardless, the frequency of when it happens or even if this is the first time in United States history that a president has so boldly forgone another branch of government (those of Cherokee ancestry are currently thinking of another time when this happened) is quite irrelevant; what matters is if Mr. Obama is right or wrong in his action.

I must state emphatically that the Constitution divided the branches of government for a reason, thus it is best to follow those branches in almost every situation. The aforementioned link to Andrew Jackson and his usurping of the Supreme Court is a perfect example of why the branches ought to respect each other’s authority. But what about when the branches are wrong? What about when both Congress and the Supreme Court rule that slavery or segregation are ruled as okay within the parameters of the law? Wouldn’t we argue that the Executive branch has a moral obligation to the citizens of the nation to find some way to usurp the two other branches? I would argue that when neither branch will support what is naturally right, the third branch always has the obligation to do all it can to usurp the other two branches so that what is naturally right is recognized.

Now again, I haven’t made a case for what Mr. Obama did (yet), so before jumping ahead to leave a comment it’s best to keep reading – this post is more about Natural Law vs. the Constitution than it is about what the President said (although what he said provides a great backdrop).

Some might argue that if we hold Natural Law above the Constitution then the point of a Constitution is nullified. If any judge, president, or congressional body deems a law wrong and can simply act against it, then why divide the powers? The reason, however, is that the Constitution is itself already an outpouring of Natural Law, so when the application of the Constitution comes into conflict with Natural Law, one is not acting against the Constitution per se. The Constitution is constructed in a way that most applications of the document are consistent with the document. However, when the intent of the Constitution is violated then those sworn to protect the integrity of the Constitution have the duty to uphold it, even if that means they are unfaithful in other aspects (i.e. if two branches decide to outlaw Islam, then the other branch has the obligation to usurp the other two branches; to be faithful to the intent of the Constitution, which is to prevent tyranny, the Constitution must be breached).

In other matters we have no problem with people acting against the Constitution. For instance, what if tomorrow Congress decided to detain anyone who looked like an Arab in the name of national security? What if after many challenges the Supreme Court ruled that this law was fitting with the Constitution because it’s “reasonable” considering the security threat? Would the power of the Constitution – a document made by man – trump the moral law of God? All except legal positivists and the strictest of deontologists would argue that the Executive branch (the President) would have the moral obligation to not enforce the law.

Thus, there are cases where the President is not only justified in violating the Constitution and the separation of powers, but is under a moral obligation to do so. The question presented to us now is whether or not Mr. Obama found himself in that situation when he made his declaration.

Make no mistake, I absolutely support President’s goal. For all his failures – enough to prevent me from voting for him (and no, I’m not voting for Romney either) – I really do support many of his attempts at immigration reform, though I find them incomplete. I think this latest attempt ultimately has good goals. The fact is that those brought into this nation when they’re not of a legal age of consent, are raised as Americans, contribute to our society, and consider this place their home have no reason to be deported. Though they lack a piece of paper saying they’re citizens they’re citizens in the realist sense of the word. That they were brought here against their will shouldn’t relegate them to moving to what is, for all intents and purposes, a foreign land.

Wherever one stands on the immigration debate, one must admit that moral culpability plays a major part in whether or not one is punished for a crime. If a five-year-old is forced to steal from a vendor because an adult tricked him into it, then five-year-old isn’t held accountable. While there are typically some punishments when one unwittingly commits a crime, or is forced into a situation where a crime is committed, the full force of the law is typically withheld. In the case of someone brought into this country at a young age (below 16) who are subsequently raised in our communities, our schools, learn our language, and essentially become American, how is it that we’re to punish them for a crime they aren’t morally accountable for? In other words, the current law on the books is wrong and needs to be changed because it’s depriving people who are practically citizens from their rights; a better law would be that at the age of 18 they’re granted a permanent visa and can apply for citizenship.

The problem with the above is that our Legislative branch never got the chance to take this issue up. Now, most certainly it would have died in the Republican-controlled House, especially during an election year when the base has to be pandered to. Likewise, there’s not much the Supreme Court could do to fix the situation. Thus, it would be up to Mr. Obama to fix this situation (as this is a human-rights violation and not something petty). Some might point out that the DREAM Act was killed in Congress, but this was an entire act that had some problems with it; a standalone aspect of the bill could have been reintroduced to Congress.

The second problem with what Mr. Obama has done is with the timing of this act. Even if the DREAM Act shows that Congress wouldn’t work to fix a law that is seriously flawed, Mr. Obama only chose to implement this policy when it came to light that this election would be tight and that the Hispanic vote would play a vital role. In other words, he didn’t do this because he has a deep-seated belief that these young immigrants have a natural right to stay in a nation they have made their own, nor did he do this because he believes that God calls us to be kind to our neighbors; rather he did this because he really wants to win the election and Hispanics are the current pawns he needs in order to win.

If one is to violate the Constitution, then one must do so from deeply held moral beliefs; a president, judge, or congressperson who violate the Constitution must be willing to lose their job or go to jail for their belief. The conviction in what is good and right must be that strong; it can’t be done simply to win a political game.  If it’s just for a game and not real moral reasons then what promise do Hispanics hold for after the election when they’re no longer needed? If one’s moral ambition cannot extend beyond one’s political ambition, then one is stuck following the Constitution. The reality is, Mr. Obama should have done this long ago knowing full-well that he could be impeached for such actions. Yet, he should have looked at the consequences and simply not cared, believing that what is right is far more important than any political office; but that’s just not what happened.

Thus, Mr. Obama could have been justified in what he did, but he’s not. The ends are justifiable because they seek to correct a major flaw in our immigration law. The means, however, are horrid and negate the ends. He should have sought Congressional approval first (even though it would have been an exercise in futility, at least he would be giving them a chance). Likewise, he should have done this last year or the year before, not now that it’s become apparent he desperately needs the Hispanic vote in order to win. That is what it means to be a principled president. While we need presidents who are practical, we need those who are practical with their principles and have a budging point, a point where they’re willing to be forced out of office rather than violate what is right.

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