Stephen B. Young, The Daily Record Newswire
Eight hundred years ago this coming June, King John of England was imposed upon by the barons and bishops of his realm to concede that his right to rule was limited in scope and purpose. His kingship was to be, in effect, an office of service and not his personal property to do with as he pleased upon a whim or a prejudice.
He was to rule according to the law of the land and in consultation with his barons and bishops. He was bound procedurally to take into account the ideas and interests of others as set forth in written legal requirements.
There has been a straight line of idealism descending for 800 years from Magna Carta down to our American way of life and legal order. The scope of constitutionalism has been ever broadened and strengthened in various ways during those centuries.
One hundred and fifty years ago come April, a great war ended which served to extend Magna Carta in dramatic ways. The law of the land was changed to end chattel slavery. Citizenship with its rights and privileges was extended to all persons born on our soil. Due process of law - a concept of Magna Carta - was promised to all.
In his Gettysburg Address of 1983, Lincoln restated the ideal of Magna Carta in these words: "that government of the people, by the people and for the people shall not perish from the earth."
Though Lincoln spoke of government of and by the people, he did not mean that power was up for grabs among those who wanted it. No, government was also to be "for" the people, which meant that general aspirations were to be served not personal prejudices. The government was to be one under the Rule of Law, not merely subject to the tyranny of rule by law where military and police forces would be used to compel compliance with the vainglorious aspirations of rulers.
But today we are slip-sliding away from this ideal. With our increasing factionalism and polarization, we are moving away from the Rule of Law towards Rule by Law.
The power struggle between President Barack Obama and the Republicans over immigration is a worrisome case in point.
National immigration policy and law impacts Minnesota as well. The size and quality of our future work force will turn on immigrant numbers and successes.
With Obama unable to get his way with the Congress on converting many illegal immigrants into legal residents, he resorted to executive fiat instead. He ordered a change in the law to benefit some illegal immigrants.
A federal judge in south Texas has just overruled the president. Judge Andrew Hanen stood on the back of the Administrative Procedure Act, a standing law, to hold that the granting of legal status by the executive Department of Homeland Security had not followed legal procedures for taking in thought and comments from the people prior to making its decision.
The Administrative Procedure Act stands on the Constitutional requirements that administrative agencies use their powers with due process. The due process idea stands, in turn, ultimately on the Magna Carta.
Judge Hanen was not unaware of the circumstances of illegal immigrants. He noted that as far back as 1982 the Supreme Court had spoken to the challenge:
"This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law." Plyler v. Doe, 457 U.S. 202, 218-19 & n.17 (1982).
And, further, Hanen found that Homeland Security Secretary Jeh Johnson - in determining how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities - was making discretionary decisions solely within the purview of the Executive Branch, to the extent that they do not violate any statute or the Constitution.
DHS discretion as to whom to deport, when and how is consistent with due process under the Constitution.
But, going further to create a new legal status, turning the illegal status of some residents (whether resulting from an illegal entry or from illegally overstaying a lawful entry) into a legal presence brought about, Hanen wrote, "a massive change in immigration practice, and will have a significant effect on, not only illegally present immigrants, but also the nation's entire immigration scheme and the states who must bear the lion's share of its consequences."
In fact, the immigration statutes on the books mandate that these illegally present individuals be removed.
Obama stated, "I just took an action to change the law."
The decision, made by DHS but ordered by Obama, created an entitlement to work legally and an additional entitlement to receive a myriad of governmental benefits to which they would not otherwise be entitled. These entitlements had nothing to do with discretion to deport or not to deport.
Was the action on his part some kind of regal prerogative where he and he alone could decide how millions of people should be treated and how much money governments should spend?
Shrill opinion both supporting and opposing Hanen's opinion focused on politics, not law. The analysis was results-oriented: If you like the results, then support the rule; if you don't like the results, say it is wrong. This degradation of law in favor of power politics corrodes the quality of our life in common. We are to be subjected to power, not to procedure and restraint of passions.
The issue in such a case, as framed by Magna Carta, is not whether a decision maker's wishes are good or bad, but the need for the decision maker to consult and to follow law in restraint of his or her impulses, however noble they may be.
Recording the effect of Magna Carta, the early English jurist Henry de Bracton wrote the king must be under God and the law, because law makes him king. There is no legitimate king where will rules rather than law. Bracton added, "The king has a superior, namely, God. Also the law by which he is made king. Also his court, namely the earls and barons because if he is without bridle, that is without law, they ought to put a bridle on him."
As even the government's own memorandum - which purports to justify the new immigration policy of creating new entitlements for those here illegally - set out, before Judge Hanen: "[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences."
We should always put first and foremost the ideal of Magna Carta and justice through the Rule of Law.
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Stephen B. Young is executive director of the Caux Round Table, an international network advocating ethical principles for business and government.
Published: Thu, Mar 05, 2015
