Can public officials defy laws with which they disagree? Kane, Haines and Obama

President Obama has publicly announced a policy of refusing to enforce U.S. immigration law against illegal aliens unless they are also convicted of a particularly serious crime or are a national security threat. In Pennsylvania, Attorney General Kathleen Kane has announced she will not defend the state statute defining marriage as between one man and one woman, and which also says Pennsylvania will not recognize same-sex marriages legally performed in other states. In Pennsylvania’s Montgomery County, the Register of Wills D. Bruce Haines has begun issuing marriage licenses to same-sex couples in defiance of the state statute.

Are these public officials justified in ignoring legally enacted statutes? Or are they violating their oaths of office and their obligations to uphold and defend the Constitution, and in the case of state officials, the state constitution, and the laws enacted pursuant to such constitutions?

Back in 1964, when I was in 10th and then 11th grade, the Civil Rights movement was raging through the segregated South, and filled the evening news with pictures of demonstrations, arrests, beatings, shootings, bombings, and murders. But as I recall, it was never discussed in class in the prosperous Detroit suburbs. Then one day, I noticed my social studies teacher, Mr. Cornelius DeStigter, was wearing a white on black equality pin in his lapel. I thought about what that meant and concluded, “Teachers have opinions on current events! Who knew!”

Then one day in class Mr. DeStigter ventured the opinion that he thought it was okay to deliberately violate the law if you believe the law is itself illegal and unconstitutional, and your purpose is to test the law in court.

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I was stunned by the radicalness and, to me, originality of that idea. It suggested the law is not just a set of rules to be blindly obeyed, but rather rules subject to challenge by anyone before the courts. I’ve always thought that comment by Mr. DeStigter had something to do with my decision to become a lawyer.

Applying that idea to Attorney General Kane and Register of Wills Haines justifies their defiance of Pennsylvania’s statute prohibiting same-sex marriage. Given the decision of the U.S. Supreme Court striking down as unconstitutional the federal so-called “Defense of Marriage Act”, it is certainly plausible if not in fact probable that Pennsylvania’s statute will similarly be ruled unconstitutional.

But what about President Obama’s defiance of Section 235 of the Immigration and Nationality Act (8 USC Sec. 1225)? That statute provides that, “An alien present in the United States who has not been admitted… shall be deemed for purposes of this Act an applicant for admission” and “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240 (removal from the United States).” Note the statute’s use of the mandatory word “shall”, and the very narrow circumstances in which an unadmitted alien is not required to be detained.

President Obama makes no claim that Section 235 of the INA is unconstitutional. He has simply decided to exercise “discretion” in not enforcing the statute against most aliens illegally present in the country. His policy announcement effectively encourages more aliens to enter the U.S. without authorization in the reasonable expectation that they will not be bothered by U.S. immigration officials.

The Obama administration policy of “prosecutorial discretion” was recently challenged in court by U.S. immigration officers who alleged improper punishment by their superiors for trying to enforce Section 235. A federal court on July 31 agreed that, “Plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to Congressional mandate.”

Because the Civil Service Reform Act specifies a non-judicial procedure for hearing the grievances of federal civil service employees, the court was obligated to dismiss the claim as barred by the Civil Service Reform Act. But the dismissal was “without prejudice”, meaning that these or other plaintiffs are free to make the same claim in court again in a different cause of action not precluded by the Civil Service Reform Act.

So I conclude that Attorney General Kane and Register of Wills Haines are on reasonable legal ground in their defiance of a statute they reasonably believe to be unconstitutional. President Obama, on the other hand, is not justified in his willful defiance of lawfully enacted immigration law with which he happens to personally disagree.

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