An Executive Order or New Legislation?


Eric Posner Professor of Law at the University of Chicago and co-author of the critically acclaimed book The Executive Unbound, believes that President Obama acted legally. He cites historical precedents of earlier Presidents issuing sweeping executive orders as basis for his opinion. He also points out that the president is the head of the Executive Branch. In that capacity President Obama can legally determine how he will enforce the nation’s laws, Professor Posner seems to rest the main thrust of his argument on some form of the concept of prosecutorial discretion.

It is a well-accepted principle that prosecutors have the inherent power not to prosecute some cases in the interests of justice when the facts circumstance warrant it. I do not think that President Obama’s order can intellectually rest on this theory of jurisprudence.  Elizabeth Foley, professor of law at Florida International University, writing in the same Times section as Professor Posner argues that President Obama lacked the conditional power to issue the executive order. According to her it is a far reach of the legal imagination to claim that President Obama exercised blanket prosecutorial discretion in deferring deporting 5 million undocumented aliens and then offering them work permits. She points out that any exercise of prosecutorial discretion would at the same time result in the President not faithfully executing the laws of the land. Besides the President himself publicly stated on many occasions that he was compelled to act in Congress’s place because it had not failed to enact comprehensive immigration reform. I cannot imagine the New York County Prosecutor refusing to enforce the state’s drugs laws because he thought that “they were broken.”

Well known and respected legal scholars along with knowledgeable constitution attorneys professionally disagree with each other on the legality issue of the President’s order. Disagreement and debate on this issue by experts can only serve to sharpen our understanding of the complexity of the legal issues. Colleagues who work side by side have put their passions aside to maintain a professional relationship with each other. It should not come as any surprise that at the Law School at Yale University professors who teach side by side offer intellectual arguments in support and against the President’s order. The legal debate over the President’s actions will be examined and debated for some time. It is universally understood that this legal debate will not solve the political problem that the President has created for himself.

Much has been made out of the fact that Abraham Lincoln’s historic Emancipation Proclamation was based upon an executive order. This is as true as it is irrelevant in terms of the debate over President Obama’s legal authority to issue the kind of executive order that he did. Supporters of the President often compare Obama’s order to the famous one issued by President Lincoln. Any such comparison is a worthless exercise in intellectual reasoning.

President Lincoln issued the Emancipation Proclamation pursuant to the president’s war powers; as “Commander in Chief of the Army and Navy” under Article II, section 2 of the U.S. Constitution. By the time Lincoln acted the Confederate States had already seceded from the Union. By this time Congress was made up of members from only Union states. The nation’s bloodiest war had been raging for more than a year. Lincoln’s September 22, 1862 order did not apply to Border States. It required Confederate States to rejoin the Union by January 1, 1863 or their slaves would be set free. The Civil War raged on for another two years before the Confederate States were finally defeated. Historians agree that if the South had won the war President’s Lincoln’s executive order would have been more meaningless than it really was.

I understand the historical significance of the Emancipation Proclamation. Nothing that I have said should indicate a lack of admiration and respect for President Lincoln. However, the Civil War was not waged over slavery but for the preservation of the Union. This having been said; I do not believe that President Obama’s Executive Action on immigration can be sustained by comparing it to Lincoln Emancipation Proclamation.

More than a week has passed since President Obama issued his controversial executive order. The fervor and rhetoric fueling the debate over its legality has subsided. Supporters for and against the initiative have had time to calm down and see the issues with a less clouded perspective. Also, it is likely that events in Ferguson Missouri have temporarily captured the nation’s attention and appetite for contentious debate.

It is important to understand how President Obama arrived at issuing his executive order. Michael D. Shear and Julia Presta, both journalists and reporters who are well-known for their reporting on immigration matters, give us some much-needed insight into the decision-making process that led to historic immigration executive order. Apparently the administration carefully considered its options and their legality in formulating the action to be taken. In a November 28, 2014 New York Times article Shear and Presta detail how Jeh C. Johnson, the Homeland Security chief, secretly met for months with a small group of advisers and legal experts to consider the legality of a number of Presidential options. According to the authors the White House’s instructions were clear; to “use our legal authorities to the fullest extent” on a new deportation policy. The article argues that President Obama wanted the legal authority to act boldly. Immigration advocates and some leading Democrats demanded that promises be kept. They pushed for immediate and broad action. Initially Homeland Security recommended that executive action be narrowly taken. The agency recommended a course of action that would have been universally viewed as legal.

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