The Wednesday Advocate: The real threat to democracy | Columns

There are many Democrats, including Joe Biden, who have virtually demonized the current Supreme Court because of its conservative makeup. The fact that Donald Trump appointed three of the most recent justices is a motivating factor for this displeasure, but many liberals simply loathe the composition of the nation’s highest tribunal.

I find this attitude rather ironic. After all, didn’t we just have an election wherein the president and so many other Democrats wrung their hands about the demise of democracy?

Truth be told, the current Supreme Court just heard oral arguments on a matter that goes directly to the ideals of democracy and the separation of powers that are enshrined in our Constitution. Like other cases before the court recently, this case centers on the power of the executive branch to issue orders without congressional authority. It involves a Memorandum by the Department of Homeland Security’s Secretary, Alejandro Mayorkas.

In September, 2021, Mayorkas dispatched a memorandum to ICE and other agencies stating that there are “more than 11 million undocumented or otherwise removable noncitizens in the United States,” and that his department did not possess “the resources to apprehend and seek the removal of every one of these noncitizens.” Rather, Mayorkas instructed agents to “exercise our discretion and determine whom to prioritize for immigration enforcement action.”

In his memorandum, Mayorkas laid down his parameter for this exercise of discretion when he said, “In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years. They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways.”

Let’s assume for the moment that Mayorkas is correct in his characterization of the majority of the undocumented or otherwise removable noncitizens (as he calls them). Frankly, his assessment is quite beside the point. In fact, his assessment can in no way justify his divergence from his oath of office, which mandates that he uphold the laws and Constitution of the United States.

Our immigration laws, passed by Congress and signed into law by the president of the United States, do not distinguish between “good removable noncitizens and bad removable noncitizens.” Indeed, whether you adopt Mayorkas’ euphemism or the more accurate terminology of “illegal alien,” these “folks,” as Obama called them, have broken the laws of the country simply by entering here illegally.

While selective law enforcement, based upon politics under the guise of prosecutorial discretion, has become par for the course in America, the Supreme Court is taking this issue head on. Does Mayorkas, as a member of the Executive Branch, have the authority to selectively enforce the immigration laws that are on the books, or is his memorandum an abuse of power that violates the Separation of Powers mandated by our Constitution?

To put it another way, is America a nation governed by the rule of law or by the mandates of men? I am reminded of Obama’s famous exclamation that he had a pen and a phone, which he would gladly employ when dealing with an intransigent legislative branch. I am also reminded of the hundreds of executive orders issued by presidents of both parties. Wither the Separation of Powers?

Mayorkas and his department have been sued by Texas and Louisiana, with both prevailing in federal district court and the circuit court, having this memorandum declared unlawful. Federal District Court Judge Drew Tipton said Mayorkas’ memorandum was “an implausible construction of federal law that flies in the face of the limitations imposed by Congress.” He went on to say, “Whatever the outer limits of its authority, the Executive Branch does not have the authority to change the law.”

Biden’s Justice Department has sought to stay implementation of these court orders without success. We now await the Supreme Court’s decision, likely next summer.

If you believe in our Constitution and its genius in creating three separate, co-equal branches of government, then I suggest you hope Texas and Louisiana to prevail. On the other hand, if you believe in eroding the power of the democratically elected Congress and placing it in the hands of unelected members of the Executive Branch, then you should be cheering for Mayorkas.

However, if you do, please don’t insult me by saying Conservatives want to destroy democracy.

Theodore Xenakis, is a Haverhill resident, retired attorney and former city solicitor for the city of Haverhill. He can be reached at TXenakis1951@gmail.com.