By John Ubaldi
Columnist, In Homeland Security
Note: The opinions and comments stated in the following article, and views expressed by any contributor to In Homeland Security, do not represent the views of American Military University, American Public University System, its management or employees.
Article I of the United States Constitution states “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Unfortunately, Congress has failed to properly address the immigration issue; instead, it has abdicated its responsibilities to the Executive Branch.
Last month, President Trump vetoed a bill passed by both houses of Congress that would have cancelled his declared national emergency on immigration at the U.S.-Mexico border. One can debate the constitutionality of his emergency declaration from whether the President has the legal authority to issue such a declaration or is he usurping the role the Constitution entrusted to Congress?
Trump Declares National Emergency
When President Trump declared this national emergency, he based his decision on the National Emergencies Act passed by Congress in 1976. The perceived need for the law arose from the scope and number of laws granting special powers to the executive during times of a national emergency. The law was passed to stop open-ended states of national emergency and to formalize the power of Congress to provide checks and balances on the emergency powers of the President.
The main deficiency in this act is it does not stipulate or spell out what actually constitutes a national emergency. This vague wording is precisely why 12 Republican senators joined all the Democrats in voting to overturn the President’s national emergency declaration.
The 12 Republicans rebuked the President on procedural matters, not on the immigration crisis itself. They did not want to set a precedent that would allow a future president to declare a national emergency on climate change, gun laws or anything else the chief executive desired.
Congress Fails to Act on Immigration Reform
As the debate continues on immigration reform, it is clear Congress has routinely failed to act. In fact, the last comprehensive immigration reform bill was signed into law during the Reagan administration over 30 years ago.
Since then, Congress has not lived up to its authority enshrined in the Constitution to pass comprehensive immigration reform legislation and have it enforced by the Executive Branch.
Immigration conjures up the most impassionate responses from both Democrats and Republicans, and President Trump’s rhetoric consistently sends people into a frenzy. But Democrats and Republicans alike have failed to live up to their constitutional obligations to pass immigration reform.
Congress Has Not Even Proposed Immigration Reform
Right now, there is not even a proposed bill in Congress to address this issue. What we have are both sides complaining about what past presidents have done and what Trump is currently doing to stem illegal immigration.
The debate is now centered on whether or not we have a crisis at the U.S. southern border. Most Republicans and President Trump firmly believe we do. Democrats, including all of the candidates running for president in 2020, believe this is a “manufactured crisis” perpetrated by the President to stoke racial fears among his base supporters.
Speaking before Congress last month, now-former Homeland Security Secretary Kirstjen Nielsen testified on the State of Homeland Security. “I want to cut through the politics to tell you loud and clear,” she said, “there is NO ‘manufactured’ crisis at our southern border. There is a real-life humanitarian and security catastrophe.”
Nielsen mentioned that DHS apprehended 50,000 to 60,000 migrants per month in 2018. In February, “we apprehended more than 75,000, the highest in over a decade. And I can tell you that we are on track to interdict nearly 100,000 migrants this month.”
Historically, she said, illegal aliens crossing into the United States were predominantly single adult men from Mexico with no legal right to stay. “We could detain and remove them within 48 hours.”
“But in recent years we have seen the volume of vulnerable populations — children and families — skyrocket. Over 60 percent of the current flow is now families and unaccompanied children, and 60 percent is non-Mexican. Our system was not built to handle this type of flow.”
Immigration Officials Overwhelmed by Migrants
Federal immigration officials have been overwhelmed by the numbers of illegal migrants and have resorted to releasing many of them because detention facilities are at full capacity. Border agents have seen a 430% increase in the number of families and migrant children attempting to seek asylum in the U.S.
Congress has also failed to address the DREAM Act, for the Development, Relief and Education for Alien Minors, which was supposed to address the plight of young children who were brought here illegally by their parents.
Obama Unilaterally Acts on Immigration
In 2012, then-President Obama acted unilaterally to stop deporting illegal immigrants who met certain condition under the DREAM Act. Since then, Congress has failed to address this issue too.
Congress has also failed to deal with Obama’s executive order for Deferred Action for Childhood Arrivals (DACA), which provided some relief for so-called Dreamers facing deportation. The executive order allowed undocumented children to receive work visas, thus giving them a low priority for deportation. The executive order resulted in hundreds of thousands of young adults signing up for the program.
As quick as Obama signed the executive order, Trump ended it. Now the fight is in the federal courts and various courts have overruled Trump’s decision to cancel DACA. But a few questions linger: Can the executive branch make or change laws that the Constitution specifically assigns to the legislative branch? Also can one president undo an executive order of a previous president?
One may not agree with Trump’s stance on immigration, but what has Congress done to rectify the situation?
The Border Patrol, U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security have implored Congress to act, but so far they have refused. All Congress does is complain, hardly a sign of constitutional leadership.