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TRACCI: Sacrificing constitutional duty to political party

How Senate party bosses and the administration obstruct immigration reform

- - Friday, May 30, 2014

Even in today's political environment, it is hard to watch elected officials demean their constitutional oath. Yet Senate Democratic Leader Harry Reid, Sen. Richard J. Durbin and Sen. Charles E. Schumer recently provided such a spectacle by inviting President Obama to further ignore the immigration laws if the House of Representatives does not promptly pass the Gang of Eight bill. In so doing, they derogated their constitutional responsibilities and helped ensure defeat of immigration reform this Congress.

The U.S. Constitution has endured as a charter of liberty for 225 years. While all its Framers command an exalted place in world history, James Madison is revered as the "Father of the American Constitution." Madison was a keen student of history, government, law and human nature, and his presence is felt in every article of the Constitution.

Madison is widely known for diffusing power among coordinate federal branches and the states to reduce the threat of tyranny. Of similar importance, he recognized that institutional self-interest serves to check interbranch party alignments that threaten the separation of powers. In Federalist 51, Madison wrote: "The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others."

This Madisonian tension has guided the bicameral legislative process and the exercise of executive and judicial power for more than two centuries. Representatives from each branch have advanced and defended their institutional prerogatives in a zealous and often personal manner. However, Madison did not anticipate current Senate leaders who sacrifice the interests of the body they are supposed to represent to the commands of the party they serve.

In a May 22 news conference that reflected recognition of his potential lame-duck status, Senate Majority Leader Harry Reid subordinated his legislative duties to the rank partisanship that will be his legacy. "At the end of six weeks, if something hasn't been done," Mr. Reid threatened, "then there's going have to be a move made." Betraying his role as guardian of the Senate, Mr. Reid clarified who he means by "we" when he then stated: "And it's too bad we have to do that, because we all know things can be done administratively, but it's better to change the law."

Mr. Reid was not alone. Mr. Durbin next took to the microphone. Seconding Mr. Reid's invitation for Mr. Obama to defy the law if the House does not yield to their arbitrary timeline, Mr. Durbin grimly concluded: "I believe [the president] has the capacity to move further in executive orders and administration actions."

Mr. Schumer next locked eyes with the camera and declared: "They have about a six-week window, from June 10 after the last Republican primary until the August recess. If they don't pass immigration reform then, the president will have no choice but to act on his own."

Legislative leaders have never been so eager to strip themselves of powers the Constitution entrusts to them. Never before have they so openly colluded with the executive to do.

Article I, Section 1 of the Constitution vests Congress with "all legislative powers." Congress can arrogate executive power no more than the president can assume lawmaking functions. Of no less importance, Congress can validly relinquish legislative power to the executive no more than the president can properly cede executive authority to Congress. Messrs. Reid, Durbin and Schumer's extralegal effort to endorse the executive exercise of legislative power does not confer legitimacy upon potential presidential action. Rather it compounds the constitutional injury such action would inflict while diminishing the institutional standing and credibility of the Senate itself.

Constitutional vandalism of this kind must be repudiated. Neither body of Congress can be expected to negotiate on terms predicated upon the other's willful abdication of its constitutional duties. Moreover, Congress must never permit the executive to commandeer legislative action by refusing to discharge its obligation to enforce the law. The constitutional bulwarks that protect our liberties must not be threatened or ransomed — they are non-negotiable. If current House leaders surrender these safeguards and accede to the Reid-Durbin-Schumer-executive ultimatum, they will abet further assault upon our tripartite system.

Utilizing this precedent, one can envision future congressional leaders endorsing executive nonenforcement of the environmental laws until the Clean Air Act is amended to their satisfaction. Or limited enforcement of gun laws until firearms statutes are liberalized or repealed. Or selective enforcement of laws protecting intellectual-property rights until relevant statutes are modified. Or executive refusal to enforce portions of the tax code until corporate-tax rates reflect international norms.

This approach to legislating is alien to the American constitutional system. No self-respecting legislator would be complicit in establishing such a precedent.

Congress has an obligation to help fix our broken immigration system. Recent events demonstrate that our borders remain porous and unsecured. The executive must faithfully enforce — not willfully disregard — the law. It is both tragic and ironic that this administration's hostility toward immigration laws — and the senators' campaign to promote further executive assault upon their validity — have scuttled prospects for immigration-reform legislation this Congress.

House Speaker John A. Boehner and Majority Leader Eric Cantor respect the lower chamber enough to recognize that its legislative calendar must not be dictated by derelict Senate party bosses aligned with an executive drifting from its constitutional moorings. When the House and Senate do take up long-overdue immigration-reform legislation, they must do so in a spirit of good faith that reaffirms the constitutional and institutional duties members of both parties have an obligation to uphold. James Madison, and the Constitution our Founders left to us, demand no less.

Robert N. Tracci served as chief legislative counsel and parliamentarian to the House Judiciary Committee, deputy assistant U.S. attorney general and special assistant U.S. attorney.