Tuesday, November 22, 2022

Guest Post: My last op-ed By Nolan Rappaport

My last op-ed

By Nolan Rappaport

The Republicans’ Commitment to America includes a plan for securing the border and combatting illegal immigration.  

The Republicans claim that record illegal border crossings have led to more drugs, more crime, and a demoralized Border Patrol that is being prevented from carrying out its law enforcement mission. This has become both a national security and a humanitarian crisis.  

Their plan calls for fully funding effective border enforcement strategies, infrastructure, and advanced technology to prevent illegal crossings and trafficking by cartels. It also calls for improving internal enforcement measures; ending catch-and-release loopholes; requiring proof of legal status to get a job; and eliminating welfare incentives.  

It may be a good plan, but the Republicans will need cooperation from the Democrats to pass implementing legislation and it almost certainly would not be implemented by the current president.

I think, however, that the Democrats will provide the necessary support if the Republicans approach them the right way.   

And the U.S. Constitution provides Congress and the courts with the ability to deal with presidents who substitute their own interior enforcement and admissibility policies for the interior enforcement  and admissibility provisions Congress put in the Immigration and Nationality Act.

Border security and enforcement-only approach  

Just as with the Democrats’ benefits-only bills, it will be extremely difficult for Republicans to get enough Democratic support to pass a bill that only has border security and internal enforcement provisions. It would be better to try the approach that made the last comprehensive immigration reform bill possible, the Immigration Reform and Control Act (IRCA) of 1986.  

IRCA sponsors were able to obtain bipartisan support with what they referred to as a “three-legged stool” agreement. It provided border security and internal immigration enforcement measures for the Republicans and increased employment-based visas and a legalization program for the Democrats.  

This approach might make it possible for Republicans to succeed in obtaining enough Democratic support to pass a bill with most of the border security and internal enforcement measures they want.  

For example, a bill with these provisions would offer benefits that are highly desired by both parties.   

  • Leg one: Border security and interior enforcement measures;  
  • Leg two: Substantial increases in the number of visas available for family-based and employment-based immigration, with funding earmarked for hiring more people to process applications for these visas; and  
  • Leg three: A DREAM Act that would create a place in the Special Immigrant Juvenile (SIJ) program for undocumented migrants who were brought here by their parents when they were young children.  

I would be surprised if the Republicans couldn’t get enough votes from Democratic senators to overcome a filibuster with this three-legged stool — unless the Republicans go too far.  

But if such a bill were to be enacted, would its provisions be executed by the current and future presidents? Recent history suggests that the current president would just continue to apply his own border security and interior enforcement policies.  

This is not a new problem. The framers of the U.S. Constitution were troubled by it too, so they put provisions in the Constitution that make it possible for the other branches of the government to deal with it.   

Separation of powers  

The experience the framers had had with the British monarchy led them to believe that concentrating governmental powers in a single entity would subject the nation’s people to arbitrary and oppressive government action. Consequently, they sought to ensure that each of the three branches of the government would have separate powers, and they provided measures that each branch can use to resist such encroachments.   

For instance, Article II, Section 4 provides that, “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  


What does “high crimes and misdemeanors” mean? Former President Gerald Ford said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Many scholars disagree.  

In any case, there is no appeal, so Congress has the final word on what that phrase means.  

Article II. Section 3 provides that the President, “shall take Care that the Laws be faithfully executed.”   

Lastly, the framers included a mandatory oath of office for presidents in Article II. Section 1, which makes it clear that presidents are bound by the provisions in the Constitution. It reads as follows:  

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’"  

Former President Barack Obama summed these provisions up nicely when he said, “I’m not a king. I am the head of the executive branch of government. I’m required to follow the law.”  

The Constitution gives Congress the power to remove a president from office through impeachment proceedings if he does not follow the law or violates any other constitutional obligation.   

However, although the Republicans could impeach Biden in the House, they wouldn’t have the votes needed to convict him in the Senate ---- unless the situation gets so bad that public pressure forces ten Democratic senators to turn on him. 

It also gives the courts the authority to reign in an errant president and the courts are less likely to be influenced by political considerations.  

Congress could make it easier for the courts to assume that responsibility by paying particular attention to making their intentions clear with the language they use when they draft legislation to implement their immigration measures, especially with respect to whether provisions are mandatory or discretionary.  

If Congress chooses to initiate impeachment proceedings, they might kill any chance they might otherwise have had to work with the Democrats.

And Biden won’t be the president forever.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at: https://nolanhillop-eds.blogspot.com



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