President Trump signed an executive order on Wednesday that’s titled “Affording Congress an Opportunity to Address Family Separation.” The title is exactly what it is — a carefully, narrowly crafted order for law enforcement to act with constitutional integrity while still addressing the valid concerns raised about current immigration policy and rightly calling on Congress to act for legislative changes. The media, of course, are largely describing the move as “reversing course” or “retreating,” but that’s patently false.
If you actually take the time to read the language of the order, two things are very clear.
First, the administration is consistently recognizing that action to substantively change immigration law and policy must come from Congress, pursuant to Article I, Section 8 of the Constitution. This executive order does not take one step outside the bounds of power precisely drawn around the executive’s authority to enforce, not write, the law.
Trump is not caving or reversing course, but rather is going on the record formally charging his law enforcement officers (namely, the attorney general and secretary of defense) with making every effort to keep families together when such action is legally available. This is a very good thing for a president to show constitutional restraint and acquiescence to the rule of law, while ordering agencies to execute the law with more compassion if and where possible.
An executive order is operatively essentially like a quitclaim deed — it’s substantively only as good as the signer’s actual authority or legal interest. For example, I could give you a quitclaim deed to Mar-a-Lago tomorrow, but that would not result in any legal transfer of property interest or change in ownership. Why? Because a quitclaim deed only transfers whatever actual property interest I have, which is nothing in Mar-a-Lago.
Similarly, this executive order is saying that the administration must enforce the current law, so will continue to enforce the law unless Congress directs otherwise, “including by detaining alien families together where appropriate and consistent with law and available resources.” Congress has all the power here, so this actually changes nothing. It’s simply a recognition that the administration will continue to enforce whatever law Congress establishes and will detain families together whenever Congress’ law allows. If we don’t like the current law or policy, Congress has to change it.
Brilliant and totally accurate. This isn’t Trump caving or doing anything he said he couldn’t. Read the text. Trump is sticking it to Congress and the activist judiciary by saying, “It is unfortunate that Congress’s failure to act and court orders have put the administration in the position of separating alien families to effectively enforce the law.”
What’s also remarkable about this latest outrage is that the liberal Left has been sharply critical of Trump for being “literally Hitler” — the idea that he would presumably use his executive powers in dictator fashion. Yet, whenever the opportunity arises for a supposed simple fix through legislating from the Oval Office, the same liberal Left suddenly demands that the president start acting like a dictator and blames him for whatever current law they suddenly find objectionable.
It might seem easier and quicker to just have an executive order that fully cures legal problems. But consider for a moment what that does to the rule of law. Our system of government requires a separation of powers precisely because no president is constitutionally vested with sufficient authority tantamount to a dictatorship. I am incredibly grateful that Trump is notacting like a dictator and trying to circumvent Congress’ sole vested authority to legislate.
The liberal Left and mainstream media have purposefully created an apparent no-win situation for the current administration, clamoring for the president to act like a dictator while complaining he might act like a dictator.
This is phony politicking and brings me to the second observation: The whole mess of family separation has largely been a media ploy to appeal to emotion without all the facts and target Trump. It’s no coincidence that this issue, one that has been ongoing for several administrations, is suddenly at peak crisis simultaneously with last week’s release of the inspector general’s report that is severely damaging to the FBI and Democratic Party.
This is certainly not to say that immigration should not be a pressing issue. Of course it should, and immigration reform has been a priority for the administration. But we’ve all conveniently forgotten recent history in the midst of our sudden outrage. The administration has consistently been calling on Congress to act with respect to the Deferred Action for Childhood Arrivals program, protecting the border, and meaningful reform to immigration policy.
What has Congress done? Nothing.
On family separation policy, we should absolutely care about families and children and be responsible for how we handle families who cross our borders illegally. There is also no question that we should all be rightly concerned about how our government is enforcing the law in any area, not just immigration. Our law must be subject to review for moral consistency. This is actually a conservative principle, and I’m totally fine with the liberal Left offering an appeal to morality and rightness of our law. Let’s just continue to apply that appeal and principle across the board to all our laws.
Is the Left going to apply moral truth and quote the Bible when contemplating abortion, or same-sex marriage, or any other issue? We should. Conservatives do consistently.
Even in the midst of a no-win situation, Trump has been consistently constitutional and incredibly savvy. I applaud both the immense restraint this executive order shows and also the willingness of Trump to address the very serious challenges our country faces with respect to immigration law. The order today is not an attempt to circumvent Congress or a retreat or concession that the executive branch actually has legislative power. Don’t let the left-wing media’s agenda fool you. Let’s keep the focus where it rightly should be: on Congress.
So, Congress, what are you going to do about this?
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is director of public policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.