Tag Archives: separation of powers

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.

Residents of New York City Can Again Drink Large Sugary Drinks

I voted for Michael Bloomberg each time he ran for office and don’t regret having done so. I thought that he governed with the right mixture of conservative and liberal initiatives. Like most New Yorkers I believed (hoped) that terms limits would have permitted an earlier change of the occupant of the mayor’s office. Bloomberg’s running for a third term in 2009 upon heals of the repeal of terms limits was a tribute to his political clout, though his continuance in office was not in the best interests of the City. Everyone will agree that he left his mark on the City.

New York City’s former billionaire mayor had his supporters, especially health advocates. They championed his efforts and initiatives to limit smoking in public areas and reduce the high incidence of obesity in the five boroughs. Many liberals saw him as a sentinel for protecting New Yorkers from unhealthy habits that robbed them of the chance to live better lives. His ban on smoking in public areas has been imitated in domestic and foreign jurisdictions. I can live with this ban though I respect others’ rights to smoke.

Mayor Bloomberg’s ban on the sale of extra large sugary drinks was almost universality denounced by everyone except for die hard health advocates. A person drinking a large sugary drink does not pose the same health risks as does secondary smoke in a public

Picture from Rueters

Picture from Rueters

areas. Before this initiative became law the beverage industry attacked the proposed ban and promised legal challenges. I never thought that the ban if it became law would survive legal challenge, and I was right.

The American Beverage Association challenged the law in State Supreme Court. On March 11, 2013 Justice Milton Tingling ruled that the City had created an administration leviathan in violation of the separation of powers. Justice Tingling ruled that the law was illegal and could not go into effect.

No sooner had the decision been rendered, Mayor Bloomberg had held a press conference denouncing the decision. He framed the entire issue and decision in terms of politics over the strict adherence to the law. The Bloomberg administration promised an appeal of the decision to protect City residents’ health.

The City’s appeal was decided on July 30, 2014 by the Appellate Division of the Supreme Court, First Judicial Department. The appeals court upheld the lowers court’s invalidation of the ban on large sugary drinks. According to the Justices the New York City Department of Health did not have the power to promulgate the rule that would ban the large drinks. The board “overstepped the boundaries of its lawfully delegated authority.” Unable to accept the decision knocking down his band Bloomberg appealed to New York State’s highest court.

Yesterday the New York State Court of Appeals issued its decision on the City’s appeal. It did not come as a surprise to members of the legal community that the City’s appeal was denied. The news media outlets immediately reported the decision. The 4-2 ruling upheld the lower courts’ decision striking down the law. In writing the majority opinion for the Court Judge Eugene Pigott stated that “by choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council.” The law was really an attempt to regulate commerce and never designed to address a specific health issue. I agree with the majority of the legal experts and commentators that the ban was completely arbitrary.

Mayor Bill De Blasio  was elected based upon his support for the ban. During the election he stated that it was critical for the city to fight the obesity epidemic and said he wanted the policy to go forward. At a news conference held today, Mayor De Blasio stated that his administration would review the decision afterward it would then consider its options. Clearly the current mayor does not have the support of the progressive-liberal establishment that he had during his election. New York City Council Speaker, Melissa Mark-Viverito has already announced her support for the Court of Appeals decision. Even the very progressive Letitta James, the City’s Public Advocate, does not support the ban. I think it highly unlikely that there will be no further efforts made to legally ban large sugary drinks.