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How President Obama can decree amnesty for illegal aliens... legally

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In the wake of the breakdown of congressional negotiations on immigration reform, President Obama has announced his intention at a White House press conference to “make some tough choices to meet the challenge -- with or without Congress.” Many observers believe that this portends new executive action on the part of the president to issue an amnesty to millions of illegal immigrants. While there is doubt on the part of some that Obama can issue sweeping changes to the immigration system by Executive Order, the Constitution does allow the president to unilaterally issue an amnesty and his past actions prove that he would be willing to take that step.

Red State’s Dan Spencer points out that, as late as 2011, Barack Obama eschewed the notion that he could unilaterally change congressionally enacted immigration laws. The president said, “This notion that somehow I can just change the laws unilaterally is just not true…. There are laws on the books that I have to enforce.”

Less than a year later, Obama reversed himself and unilaterally halted deportations of young illegal immigrants. According to CNN, Obama’s election policy change applied to “people younger than 30 who came to the United States before the age of 16, pose no criminal or security threat, and [who] were successful students or served in the military.”

Law professors John Yoo and Robert Delahunty argued that Obama’s policy change was unconstitutional. Under the Take Care Clause, the president has a constitutional duty to enforce the laws. Nevertheless, the policy has gone unchallenged since 2012 and has become de facto law.

The most obvious executive action by the president would be to simply enlarge his previous policy of stopping deportations for certain illegal aliens. There is no way of knowing what the terms of such a new policy would be, but it could conceivably include any illegal immigrants who do not have criminal records.

Another option that rests on a more firm legal footing would be for President Obama to simply issue a blanket amnesty for all illegal aliens. As pointed out on the Wounded American Warrior blog, “amnesty” is defined as a pardon issued to a large group of individuals. Under Article II Section 2, the president has the constitutional authority to issue pardons to illegal aliens.

Observers ranging from Rush Limbaugh to the Huffington Post agree that issuing a blanket pardon to illegal aliens would be a constitutional course of action for President Obama. In the analysis of the Huffington Post, a pardon would not allow illegals to become U.S. citizens or legal residents, but it would remove the threat of deportation or other punishments. This would have the effect of leaving illegal aliens in a permanent legal limbo, able to continue their lives in the United States, but unable to access the rights of privileges of legal residency.

Such a blanket pardon is not unprecedented. In 1977, President Jimmy Carter issued a blanket pardon to hundreds of thousands of men who were accused of dodging the draft during the Vietnam War. Another controversial presidential amnesty was Andrew Johnson’s pardon of former Confederates after the Civil War.

A presidential pardon of illegal aliens would not solve the problem of illegal immigration. It would most likely make it worse by providing a new incentive for immigrants to enter the country illegally. Any permanent solution would still require congressional action. If this is true, why would President Obama take the step of issuing a unilateral amnesty?

The obvious conclusion is that President Obama believes that executive action on immigration will help Democrats in this year’s midterm elections. Obama’s halt to deportations was widely credited with helping sway Hispanic votes in 2012. Examiner’s analysis of 2012 exit polls found that immigration was the issue that most damaged Republican candidates. Aaron Blake of the Washington Post writes that executive action in 2014 might not be as effective as it was in 2012.

Rush Limbaugh theorizes that Obama might also issue pardons in an effort to goad Republicans into an impeachment attempt. Limbaugh believes that impeachment would unite the fragmented leftist coalition in defense of the president and cement a Democratic victory in 2016. Recently, Democrats have been using the prospect of impeachment as a fundraising tool.

With Congress in recess and the Democrats increasingly desperate with regard to their chances in November, the odds are good that President Obama will follow through on his threat to act on his own. At this point, the only certainty is that such a move would sow confusion in the upcoming congressional elections and further inflame passions on both sides in the immigration debate.

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