top of page
  • Writer's pictureJeff Utsch

On Immigration, Congress Is the Ref

As we all know, on the sports field, the referee is the one who keeps order and makes the call. He is expected to make the call.

If, when it comes to a tough call, the ref is silent, the repercussions are widespread. Fans become belligerent. Players become aggressive. Games, with no authority, descend into chaos.

The reasons may vary. The ref may be scared to offend; worried about an appearance of impartiality; worried about his job security; or concerned that a call may cause controversy.

The reasons are irrelevant. Whatever they are, if the players and crowd don’t perceive a game is being called fairly, look out.

With that in mind, let us examine the debate over President Trump’s executive order on a travel ban to the United States. Congress is the ref and its lack of initiative in making a call is creating just the scenario in which fans and players take a path into chaos.

It is the Congress which should shoulder the blame, not the Judiciary, and its 435 members should stand accountable for any security issues with immigrants that emerge.

Don’t get me wrong. The Judiciary loses vast credibility but, after decades of wantonly legislating from the bench without guidance from Congress, are we really surprised with this latest opinion by the 9thCircuit Court?

While this battle between the Executive and Judiciary continues, the branch that holds the power on immigration remains silent and idle. Ambiguity in an immigration argument between the Executive and the Judiciary? The Legislative branch can rein in either one — if it so chooses.

It has done so before. The 39th and 40th Congresses reined in the Judiciary in the realm of its Reconstruction Acts, and took away the court’s jurisdiction to even hear the case. If those within the Legislative Branch disagree with Executive policy, it can and should step-up and back the very Presidential authority they have provided — or rescind it. Those 435 men and women can provide the necessary clarification.

Many think times change with a new sheriff in town. But, a strong sheriff surrounded with the same timid and self-serving posse –Congress—can bring about paltry long- term change.

In abdicating its power and hiding from fights in which is should constitutionally engage, Congress has contributed to a shredding of freedoms. Moreover, it has left voters with little influence between major elections.

Most look to the judiciary as a kind of perpetual referee. They are wrong. Both Lincoln and Jefferson have affirmed this. In this instance, we need to change the paradigm of who we believe to be the referee.

Yes, the Judiciary often plays a key role in resolving conflicts. Not here.

The referee is the one to whom the power has been delegated.

There is no doubt where this power lies in regards to immigration. Article 1 Section 8 of the Constitution states clearly that Congress is empowered to, “establish an uniform rule of naturalization.”

What it does not say is that the Congress has the power to “establish an uniform code of naturalization” if:

  • It makes reasonable arguments as to why they made the law and explain it to us (Judiciary).

  • People are not inconvenienced by the implementation of the law.

  • Families are not separated.

  • The economy is not impacted.

  • All people are treated the same no matter what.

  • State Universities are not impacted.

  • The hiring of foreign scholars is not curtailed.

  • Students “educational success” opportunities are not thwarted.

  • Continued research is not prevented.

  • Travel is not impaired to foreign aliens.

  • People leaving this country will be allowed to return.

  • It is a moral and just law.

  • Religious minorities do not have preference.

  • The public interests are not infringed per the Judiciary.

  • Due process has been served and those affected have “notice and an opportunity to respond”

  • Government can show that law is “necessary to avoid irreparable injury”.

These bullet points, above, are the arguments made by the 9th Circuit in declaring jurisdiction and giving the plaintiffs (States of Washington and Minnesota) standing, and then ruling unconstitutional the President’s order.

Either Congress has the power over Immigration or it does not. Either they have lawfully delegated certain authority to the President in this realm or they have not.

Since 1952 it sure seems clear what Congresses intent has been.

McCarran-Walter Act:

The Immigration and Nationality Act of 1952 allows for the “Suspension of entry or imposition of restrictions by president.

Whenever the president finds that the entry of aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, the president may, by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Congress should either step up and back the President’s authority to issue an executive order on immigration, as they have authorized above, or they should repeal this clear law. Staying silent is the coward’s way out.

What is next, the Court questioning and reviewing Congresses ability to declare war? I wonder if the Courts would get away with it if they used the same arguments as above? “No, you can’t declare war if it affects any State Universities and their ability to hire immigrants”. Ridiculous.

In fairness, the singular, possibly legitimate argument made by the court is regarding lawful permanent residents who may possess rights to due-process. Even this, though, is not a slam dunk.

The Executive Branch has since clarified that the order’s intent is not to include lawful permanent residents but the court fails to accept that explanation and wants the wording changed. The Court, then, should have just declared only this part of the order unconstitutional, not the entirety.

The Court’s stay should only be applied as it affects lawful permanent residents. The President ought to be able to merely change the wording and offer an amended order or a new one altogether in order to remedy this issue.

The best solution, of course, is for Congress to become involved and stand up for itself and assert the power vested in it under the Constitution. Isn’t it interesting how courts strike- down laws clearly within the purview of the federal government –immigration—but, then, themselves legislate from the bench in areas in which the federal government has no jurisdiction?

We occupy an inside-out world as it relates to the Courts.

And Congress, more than any other entity, has let this happen. The Founders expected the Legislative Branch to keep the Courts in check (See Federalist 80.) That Branch has failed miserably.

Still, at least our representatives will get reelected if they do nothing controversial and keep heads down. Their jobs are safe. They can find solace in knowing they’ve dodged yet another opportunity to protect and defend the Constitution they have sworn to uphold. They were given the whistle and the power of the referee and said, “No thanks.”

Sam Adams may have said the same to Congress today as he did to those who failed to support the cause of Liberty in his own day:

"If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen."


Jeff Utsch is the Vice President of Educational Development for Compact for America, Inc. and a founding member of the States United Balanced Budget Initiative Arizona – an Arizona-based grassroots 501 c 3 dedicated to supporting the Compact for America.

An aerospace engineer by training, Jeff currently consults with Paradynamics, a Tucson-based company contracted to develop parachute-type canopies capable of flying specific missions as required by the Defense Advance Research Agency. Using the skills he developed as an All-American swimmer and Captain of the University of Arizona swim team, Jeff currently serves as an Instructor to the Navy SEALs / Naval Special Warfare community where he teaches Navy SEALS and support personal in specialized tactical swimming. He also served as a Director and Ambassador for the Navy SEAL Foundation.

Jeff is a self-taught constitutional scholar and historian with a keen interest in the founding of this wonderful country. He currently can be heard as the constitutional expert for the weekly constitution segment of the James T. Harris Show on 104.1 The Truth FM radio in Tucson.

6 views0 comments


bottom of page