THE BLOG
01/26/2016 02:51 pm ET Updated Jan 26, 2017

SCOTUS: Is Trump's Immigration Policy More Constitutional Than Obama's?

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Mass deportation. Donald Trump's herd them up and ship them out rhetoric is getting more attention than Miley Cyrus at the VMAs. Everyone from Barbara Walters to Scott Pelley has asked the presidential hopeful, how can you do this?

His answer usually sounds a little something like this, "we will just do it." The real question is: is it legal? Is it constitutional? A new Supreme Court case that will examine President Obama's diametrically opposed attempts to protect illegal immigrants in this country will give us the answer.

It will also answer the following question, which no one is asking: has President Obama committed an impeachable offense? His actions don't involve sex, so they haven't gotten much coverage. However, President Obama's use of his executive power to try and reform immigration laws could be just that: grounds for impeachment. In fact, it's the same grounds that led to President Andrew Johnson's impeachment, one of only two Presidents to ever be impeached. Conversely, Donald Trump's controversial objectives may be exactly what our laws require of the President.

How can one case answer these two monumental questions? Very easily. This new case will be examining the power of the presidency. How much power does the president really have? Can he use it to overpower Congress when bipartisan bickering stalls our country's progress? Or, is he powerless?

The story starts with Trump and Obama's campaign promises. A presidential promise on the campaign trail is like a 12-year-old owning a distillery: legally impossible to effectuate. President Obama promised a path to citizenship for illegal immigrants.

It hasn't happened because Presidents have no power to make the law in this country. Just look at the Constitution. Article 2, gives that power exclusively to Congress. On the other hand, Donald Trump is promising to deport illegal immigrants. This promise is very distinct from Obama's. How? Obama promised to change the law, Trump is promising to enforce the current immigration law. That's what this Supreme Court case is all about. Presidents are forbidden from making the law, however, they are required to enforce it. But Obama is a bit like that 12-year-old with a fake ID, trying to change the law and hoping no one catches him.

So what exactly did Obama do? Well, he asked Congress to fulfill his campaign promise and reform the country's immigration laws. When that failed, he used his power to change the immigration laws himself. In his 2014, executive order called the Deferred Action for Parents of Americans (DAPA), Obama promised to let the alien parents of U.S. citizens and permanent residents stay for an extra three years and legally work in this country.

He promised them eligibility for driver's licenses and/or social security numbers, access to certain state and federal benefits and said they could work and would pay taxes. This sounds a lot like the rights of citizens! Except, they would still be illegal aliens. His order is blatant lawmaking disguised as enforcement power. It's not just President Obama displaying a fake ID, it's him trying to pass himself off as a blonde female.

Twenty-six states, with Republican governors, challenged Obama's executive order in court. The case, United States v. Texas is now headed to the Supreme Court.

The supreme court justices will ask, does Obama's action violate the Take Care Clause. The Take Care Clause? What could that be? I can tell you it's not a sendoff from a concerned family member. The Washington Post raced to press with headlines like, "Supreme Court Bombshell". Newsflash, this is not a surprising question, it's the ONLY question. The Take Care Clause will tell us: does the President have the power to do what he did?

If you and Joe Biden, were able to focus beyond Beyonce during the Inauguration, you may have heard the President promise to take care that "the laws be faithfully executed" (Article 2, section 3). The Constitution's Take Care Clause places a duty, not a power, but an obligation on the President to enforce the laws. So, it has long been "understood" that the President can issue executive orders to accomplish that goal. Failure to fulfill that duty, is an impeachable offense. President Andrew Johnson, was impeached because he failed to enforce a law that he didn't agree with. (Note to future Presidents: Congress also doesn't like when you lie about your sex life.)

The President has "prosecutorial discretion," in deciding when and how to enforce the law. But, he must enforce it according to Congress's intended purpose. For example, President Obama has exercised prosecutorial discretion in the past by not going after medical marijuana users for violating federal law but going after drug lords. It is his right to prioritize enforcement of the criminal law.

The argument before the Supreme Court will look a little something like this: Republicans: "President Obama is using his executive power to change the immigration law" v.s. "Obama: I am using my discretionary power to enforce the law."

Obama is calling his policy a mere prioritization of who to deport first. Focus on felons not families. This reasoning would pass muster if the policy didn't promise work permits and social security numbers to millions of illegal aliens who qualify for deportation. The Immigration and Nationality Act expressly says that immigrants may only achieve citizenship by coming to this country legally. The U.S. is permitted to legally admit nearly a million immigrants a year .

Our immigration policy already gives priority to skilled workers and family members of citizens with nearly half a million family-based visas available annually. In order to work in this country, you must have lawful status and prove it by offering a valid social security number or driver's license. Obama would like to offer proof of citizenship to non-citizens to help them get hired, even though the law says that any employer who hires an illegal immigrant can face criminal or civil sanctions. The law also says any changes proposed by the President must be submitted to and approved by Congress.

So the President used his executive power to undermine the law, not faithfully execute it. In the Johnson era, and perhaps this one, that could be grounds for impeachment. It is considered an abuse of constitutional power and a violation of separation of powers.

From a purely legal perspective, our present immigration policy is more favorable to Donald Trump's plan to mass deport immigrants than it is to President Obama's attempts to keep families together. If Trump were President, he would have an easier time justifying mass deportation by saying he is enforcing the law under the Take Care Clause.

Usually, courts don't adjudicate a president's exercise of discretion. By accepting this case, the Supreme Court isn't buying Obama's argument that this is an exercise of discretion and not an abuse of discretion.

The president must faithfully execute the law, not frustrate the law. After making a clear policy change to our country's immigration laws, Obama even trash-talked to Congress, telling Republicans that if they don't like his executive action, then they should pass immigration reform. This isn't the NBA finals, it's government. Maybe he forgot that just two hundred years ago his ideological rivals wore powdered wigs.

Believe it or not, in this day and age of selfies, snapchats and sitcoms, the Constitution still has a stronghold on the boundaries of political power. Don't be surprised if the Supreme Court uses this case to make that statement.