An Executive Order or New Legislation?


AP News
AP News

For months President Obama warned Congress that it had to take steps to “fix the nation’s broken immigration system.” He never said specifically what he wanted Congress to do, besides to pass a bill. Whenever the opportunity presented itself the President publicly declared his intention to fix the problem on his own if the Congress failed to act. He never shied away from mentioning that he was ready to use an executive order to deal, what he claimed, were serious defects in the nation’s immigration laws and policy. He reminded his detractors that he had already used his powers to help the “Dreamers.” The defeats suffered by Democrats in the mid-term elections served as a signal to the President that his time to act had come.

The President informed the press that he would address the nation during prime time to announce his action on immigration. Always looking for free political publicity the President hoped that the big three television networks would have carried his speech but they all declined the invitation. The networks did not want to in be interrupted their scheduled shows. Regardless, the President’s show went on. President Obama announced that he would sign an order that would allow about 5 million undocumented aliens who were parents of children born in the United State or were parents of dreamers to avoid deportation and be eligible for work permits. His executive order remains in effect for only three years. You can listen to the entire address here.

Leading up to the speech the White House and some immigration advocates leaked details of the President’s contemplated executive order. Consequently, even before the President’s appearance on T.V. Democrats and Republicans had already begun arguing over the legality of the President’s order and it political ramifications. Some legal commentators have gone so far as to suggest that centuries of expanding presidential power coupled with congressional ineptitude has resulted in change in the balance of power. It seems that by either habit or default the Executive Branch has become more powerful than the Founding Fathers could have imagined.

Did President Obama overstep his legal authority in issuing his immigration executive order? I think he did. It is imperative that Congress act to restore the balance between the branches of government if America is going continue to have a healthy  democracy.

The constitution does not contain any specific clause on the issuance of executive orders. Regardless of the specific absence of any constitutional language it is universally agreed that a president may issue executive orders to help officers and agencies of the Executive Branch manage their operations. Over the years Presidents have increased their usage of executive orders and expanded their reach. I think that this increase corresponds to the growing complexity of American society. These orders almost always related to the enforcement of an existing law. President Obama in the issuance of his executive order reasoned that he had the power not to enforce the laws of the land and to fundamentally alter existing law. Some constitutional experts argue that President Obama enacted new law under the guise of an executive order. I agree with these experts’ point of view.

We should not forget that when the President Obama was running for office he stated that a president should not invent powers that the he did not have. He campaigned on platform that criticized then President George Bush’s use of executive orders. The then candidate Obama believed that the office of the president should respect Congress’ purview. He was a true champion of the doctrine of separation of powers. He even rejected early calls to use his executive powers to bring about changes in the immigration laws. Was all of this just political double talk that should be excused? It has to be noted when issuing his recent executive order on immigration President Obama abandoned all pretense that he was ardent supporter of the separation of powers. He did not even try to hide the fact that he had done his best to bypass congress. It is this clear hypocrisy that has caused so much political consternation over the President’s initiative.

Two days before the President officially announced his executive order his right to issue the contemplated order was vigorously debated in the New York Times, Opinion Pages, under the Room to Debate Section. Six well know legal scholars split on the question of the President’s legal authority issue the order. The legal debate was spirited and supported by recognized legal authority. Each expert had their own particular legal reason for advocating their point of view.

Published by Paul Hunter Jones

I was raised in Great Neck, New York. In 1975 I received a B.A. degree from Alfred University. Three years later I graduated from the University of Michigan School of Law and have been practicing law in New York ever since. I am a Republican though I will vote according to the better policy or stance. Politics, law, and finance are my interests. I give special thanks to Cheryl Jones of Lexington South Carolina, my sister, and Eliana Trout Blanco of Santa Marta, Colombia, a one of the kind friend, for their contributions in the writing of this blog.

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