Joe Biden’s Executive Amnesty Is Illegal, Unjust and Self-Defeating

By Josh Hammer

During the Constitution ratification debates between the Federalists (who supported ratification) and the Anti-Federalists (who opposed it), one of the most strident areas of disagreement was the extent to which the proposed position of president of the United States was actually an ersatz king. Leading Anti-Federalists thought the new president would be a thinly veiled monarch. In response, leading Federalists—including those who would eventually hold radically different views of presidential powers—joined forces to assuage Anti-Federalist concerns.

Multiple essays of The Federalist Papers, the Federalists’ eponymous effort to publicly promote the ratification of the Constitution, were dedicated to explaining the nature of the office of the presidency. In Federalist No. 69, Alexander Hamilton—who would in subsequent years take a much stronger view of Article II presidential power than his contemporary and Federalist Papers coauthor James Madison—dedicated an entire essay to arguing that the president is not nearly as powerful as the British king. In making his case, Hamilton noted that the president “can confer no privileges whatever,” whereas the king “can make denizens of aliens” and “noblemen of commoners.”

This must be emphasized: During the fledgling nation’s constitutional ratification debates, which assumed existential importance after the failure of the Articles of Confederation, Federalists felt compelled to distinguish the presidency from the Crown on the grounds that the king “can make denizens of aliens,” but the president has no such power. Indeed, the Framers cared so much about this that they explicitly accorded to Congress, in Article I, Section 8 of the Constitution, the power to “establish a uniform rule of naturalization.” The message was clear: The president is not a king.

Well, so much for that. This week, President Joe Biden became the second straight Democratic president to unilaterally engage, absent any authorization from Congress, in the quintessentially kingly act of “mak[ing] denizens of aliens.”

In June 2012, former President Barack Obama issued his signature Deferred Action for Childhood Arrivals executive amnesty, notwithstanding the fact that Congress had expressly rejected the DREAM Act amnesty legislation on which DACA was predicated. Two years later, Obama followed it up with Deferred Action for Parents of Americans, another executive amnesty that lacked any congressional authorizing legislation. Former President Donald Trump repealed DAPA in 2017; DACA has consistently been stymied by the federal courts, including the 5th Circuit Court of Appeals in 2022.

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