There is no greater an example of an abuse of executive power than that which President Obama displayed recently in his announcement of an executive order creating a new immigration policy, which will grant immediately to 800,000 illegal aliens the freedom to walk within our borders as legal inhabitants.
Lest I be called insensitive, allow me to make clear that this article is not about the plights of minor immigrants, brought illegally across borders by their parents or guardians. This is about the rule of law, the duties of the executive, and what powers our president does not have.
Firstly, there is clearly a logical fallacy in issuing an executive order telling a department not to enforce existing law. As the chief executor of the nation, it is the president’s responsibility — his duty — to “faithfully execute”[1] his office. An office[2] is a public charge to carry out the desires of the people. His only domestic peacetime job is to manage an administration that looks at laws Congress — i.e., the people — has passed and determine the most efficient and effective ways of enforcing them.
Executive orders have been issued since the founding of our nation, but they have always been issued in concurrence with — not opposition to — existing law, as ambiguous and vague as that law may sometime be in its delegation of power.
President Obama’s most recent claim to executive authority on immigration is absolutely contrary to existing law. He is not just failing to “take Care that the Laws be faithfully executed,”[3] he is ordering others to violate existing law. This is not an execution of law; this is not the action of an executive; It cannot be considered executive because it does not execute any law. This is not an executive order: It is simply an order, nothing more; an order made by a man — not by law, not by Congress, not by the will of the people, but by a political and impatient man.
Secondly, there is a historical problem in Obama’s decision that makes him look less like an American President and more like a late 18th-century British Monarch.
William Blackstone, the foremost authority on law for Britons and early Americans alike, defined an individual’s relationship to other individuals in society firstly as being either a natural-born citizen or an alien. Much to the chagrin of “birthers” (who wrongly believe M. de Vattel was more influential than Blackstone), he writes “Natural-born subjects are such as are born within the dominions of the crown…that is…the allegiance of the king; and aliens, such as are born out of it.”[4]
Under English law, aliens (legal or illegal) could not reasonably purchase lands or estates for his own use because he did not owe allegiance[5] to the sovereign.[6] An alien could not expect the same protection as a subject (or citizen); he did not have the same civil rights; he could not expect social welfare; because in the social contract he owed nothing to the sovereign or society.
But do not think the English “cruel,” or “nativists,” or “racists,” or whatever other epithet. They offered an intermediate status between citizen and alien. By ex donatione regis[7] letters patent, a favorable subject could become “a kind of middle state between alien, and natural born subject,” called a denizen.[8]
These “denizens,” according to British Law, “may take lands by purchase or devise, which an alien may not; but cannot take by inheritance…” They could pass property along to their own children, but they could not inherit any property or status from their parents. Only the king could make denizens from aliens. This was an “incommunicable branch of the royal prerogative.” Only Parliament could naturalize an alien, but granting letters of denization to aliens was an exclusive prerogative of the crown.
I give this long, and somewhat dull, legal history to juxtapose it with the words of Alexander Hamilton, who fought and wrote vigorously in defense of the Constitution to the citizens of New York during their constitutional skepticism. There was a widespread perception among New Yorkers that this new Constitution gave too much authority to the federal executive, making him look more like King George III than like Gov. George Clinton. Hamilton thought this absurd for many reasons, and compared the British constitution with the American Constitution to prove his point:
Among several other differences is this: “The one [the president] can confer no privileges whatever; the other [the king] can make denizens of aliens.”[9] To prove the constitutional weakness of the federal executive, Hamilton used an exception clearly understood from their recent system of tyrannical government. Kings — ergo, Tyrants — made aliens legal without the consent of parliament and the people, according to the American Constitutionalists. American presidents have no such power. They can never have any such power. Such a prerogative was a power held by a tyrant, not the people.
The American Blackstone, St. George Tucker, that great Virginian-Jurist, made his own commentaries on American Law in 1803, and agreed wholeheartedly with Madison, Hamilton, and Jay.
“The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states.”[10]
The reason the power of denization should be left to the states, argued Tucker, was to promote the confederal competition the American Constitution was designed to encourage.[11] While naturalization standards were delegated to the federal Congress (for the complete enjoyment of citizen liberties and privileges),[12] the midway status of a denizen being left to the states would encourage beneficial migration to conciliatory policies.[13]
So while Obama claims to be a federalist on issues of marriage, he tramples that federalism and the Constitution on issues of immigration and alien residents, by declaring them denizens of the states in which they reside without the consent or advice of either the Congress or the states. He has not “faithfully executed” the laws of the United States or his office. He has invoked a royal prerogative, reserved for those whom we once detested, ruling by personal order — not by executive order — that he alone is the arbiter of legal residency, not the people or the Constitution from whom he has derived his official authority.
[1] US Constitution, Art. II., Sec. I.
[2] “Office,” originally in Latin opus + ficere, literally “to do the work,” whence officium, “performance of a task.”
[3] Art. II, Sec. III. “Execute” is derived from Latin exsequi, which had a literal legal meaning of “to follow out to the end, to follow continuously or vigorously,” and even had connotations of “following to the grave,” whence executioner, etc.
[4] Blackstone, Commentaries, 1:354
[5] “Allegiance,” says the eminent jurist, “is the tie, or ligamen, which binds the subject to the king, in return or that protection which the king affords the subject.” Etymologically, “Allegiance,” has a direct ancestor in the Latin vb. ligo, ligare, i.e, “to tie or to bind,” whence comes our English words ligament, ligature, liable, liaison, and league; also oblige, relegate, and even religion. The 18th-century sense of allegiance is deeply rooted in a social contract between sovereign and citizen.
[6] Ibid., 359-360. Interestingly, under English Law, it was well established that children born within the king’s dominion to an alien were considered natural-born subjects, in contrast with the French jus albinatus, which determined that children born to foreigners in domestic lands were still foreigners.
[7] Or, “By the king’s grant.”
[8] Blackstone, 1:362; “Denizen,” is a word with the legal meaning of the term still intact today in Britain, and a very similar meaning in the United States. See Black’s Law Dictionary, entry “Denizen.”
[9] Publius [Alexander Hamilton], “The Real Character of the Executive,” in The Federalist Papers (no. 69).
[10] This is a quote from a letter by George Nicholas, esq., a member of the Virginia House of Delegates, and law professor in Kentucky. In St. George Tucker, View of the Constitution of the United States with Selected Writings.
[11] Ibid.
[12] Art. I, Sec. VIII, Cl. 4
[13] Tucker, op. cit.
