I am speaking with Harry DeMell, an Immigration Lawyer from New York City.
Schupak: So. The Supreme Court has ruled on the immigration case of Texas v U.S. It was a split decision, four to four decision. What do you make out of this?
DeMell: I think that this was the best of all possible decisions. It means that the decision of the Fifth Circuit Court of Appeals stands. Had Justice Scalia lived the law would have been struck down. Had it gone the other way it would have supported a significant extension of the president's power.
Schupak: Remind me again what this case was about.
DeMell: Several years ago President Obama issued an executive order allowing certain children who came to this country without permanent residence, to stay here, work, go to school, and travel. Then two years ago he issued an order allowing their parents to stay the same way. That second order was challenged and was invalidated by the appeals court.
Schupak: What's wrong with that order? It allows parents to stay with their children.
DeMell: It's a separation of powers issue. The proper way to implement a policy like this is either a congressional act or an administrative one. There is law for this. President Obama did neither.
Schupak: Doesn't the president have this power?
DeMell: Only pursuant to the Administrative Procedure Act. There is a way to proceed and President Obama ignored the act.
Schupak: But if the order does good, shouldn't it stand?
DeMell: If the Supreme Court upheld it, it would grant powers to the president that would greatly expand his powers. You may want it when he does what you want, but you would have a very different opinion if the action was against your desires. One person, even the president should not have the power to change the law.
Schupak: So you wanted the action granted illegal.
Schupak: Not exactly. I think in the case of a real emergency the president should have expanded powers. This was not the case. The decision was good.
Schupak: Doesn't the president understand the law? He was a constitutional professor in law school.
DeMell: Good point. He should have known better. Everyone seems to be result oriented. That want what they want, but in America the system is very important. That's what the constitution is all about. We have procedures and those procedures diffuse power and make dictatorship difficult. I think this is a good thing and even a small step like this needs to be stopped. President Obama might have fixed this but chose not to.
Schupak: Why not.
DeMell: I think that he didn't want to admit to a mistake.
Schupak: Forget the procedure for a moment. Don't you think the action would keep families together and wouldn't that be a good thing.
DeMell: Andy. If you grant these amnesties, and that's what they are, you encourage millions of people to come here or stay here illegally. That's not good. We are a nation of laws, not whims. It's a necessary and proper function of governments to control their own borders. These orders undermine that effort. We can't have a legal system that's meaningless. If the president pardoned millions of criminals there would be an outcry.
Schupak: But you seem to want the president to have that power.
DeMell: Some things are better left ambiguous. The president has to be accountable to our laws yet in a real emergency he needs some flexibility. By President Obama issuing this order without following lawful procedures he might have upset the legal boundaries defining presidential powers. I believe the constitution and good sense were served by this decision. It's now up to the next president.