Courts

The Limits to President Obama's Authority on Immigration Executive Orders

Is the president enforcing laws not as Congress wrote them, but as he wishes them to have been written?

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In 2014, President Barack Obama signed

Obama, immigration, the courts.
Dreamstime.com/Juan Camilo Bernal

12 executive orders directing various agencies in the departments of State, Justice and Homeland Security to refrain from deporting some four million adult immigrants illegally present in the United States if they are the parents of children born here or legally present here and if they hold a job, obtain a high-school diploma or its equivalent, pay taxes and stay out of prison.

Unfortunately for the president, the conditions he established for avoiding deportation had been rejected by Congress.

In response to the executive orders, 26 states and the House of Representatives sued the president and the recipients of the orders, seeking to prevent them from being enforced. The states and the House argued that the president effectively rewrote the immigration laws and changed the standards for the deportation of unlawfully present adult immigrants.

The states also argued that because federal law requires them to offer the same safety net of social services for those illegally present as they do for those lawfully present, the financial burden that the enforcement of those orders would put upon them would be far beyond their budgetary limits. Moreover, they argued, enforcement of the president's orders would effectively constitute a presidential command to the states to spend their own tax dollars against their wishes, and the president lacks the power to do that.

In reply, the president argued that the literal enforcement of the law creates an impossible conundrum for him. He does not want to deport the parents of American children, as that destroys families and impairs the welfare of children; and he cannot deport children who were born here, as they are American citizens. Hence his novel resolution.

The case was filed in Texas, where a federal district court judge agreed with the states and signed an order that prohibited the feds from enforcing the president's orders, pending a full trial. The feds appealed.

The U.S. Court of Appeals for the 5th Circuit in New Orleans upheld the injunction against the president. In so doing, it agreed with the states that the financial burden on them that would come from the enforcement of these executive orders would be unconstitutional. It also agreed with the House of Representatives that the president exceeded his authority under the Constitution and effectively rewrote the laws.

This week, the Supreme Court heard the feds' appeal. Because the seat formerly occupied by the late Justice Antonin Scalia for 30 years is still vacant, the court has just eight justices — for the most part, four conservatives and four liberals. A tie vote in the court, which appears likely in this case, will not set any precedent, but it will retain the injunction against the president. The most recent time this happened was 1952, when the court enjoined President Harry Truman from seizing steel mills during the Korean conflict.

Though the issue here is immigration, the constitutional values underlying the case are more far-reaching. Since the era of Woodrow Wilson — accelerated under Franklin D. Roosevelt, enhanced under Lyndon B. Johnson and brought over the top under George W. Bush — Congress has ceded some of its powers to the president. It has enabled him to borrow unlimited amounts of money and to spend as he sees fit. It has looked the other way when presidents have started wars, arrested Americans without charge or trial, and even killed Americans.

Can Congress voluntarily give some of its powers to the president, either by legislation or by impotent acquiescence, when the president takes them?

In a word, no.

The purpose of the division of powers — Congress writes the laws, the president enforces the laws, and the courts interpret them and decide what they mean — is to preserve personal liberty by preventing the accumulation of too much power in one branch of government.

The 26 states and the House told the Supreme Court this week that the president is enforcing the laws not as Congress wrote them but as he wishes them to have been written, because he actually directed officials of the executive branch to enforce the versions of the laws that he rewrote instead of the laws on the books.

That arguably violates his oath of office, in which he agreed that he would "faithfully" enforce all federal laws. We know from his notes that James Madison, when he drafted the presidential oath, insisted that the word "faithfully" be inserted so as to impress upon presidents their obligation to enforce laws even if they disagree with them.

During oral argument in the court this week, there was a bizarre exchange over terminology that the president used in his orders. In a weird series of questions, Chief Justice John Roberts Jr. asked whether the president's executive orders could be salvaged constitutionally by excising or changing a few words. This was improper because it treated an executive order as if it were a statute. It is not the job of the court to find ways to salvage executive orders as it is to salvage statutes, because the Constitution has given "all legislative Powers" to Congress and none to the president.

Statutes are presumed to be constitutional. Executive orders that contradict statutes are presumed to be unconstitutional, and the court has no business trying to save them.

All presidents from time to time have exercised discretion upon individuals when it comes to enforcing laws that pose hardships. But none has done so for 4 million people, and none has written substitute laws of his own making. Until now.

COPYRIGHT 2016 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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  1. Is the president enforcing laws not as Congress wrote them, but as he wishes them to have been written?

    The God Emperor Obama enforces laws as he damn well pleases, and the peasants will take it and like it. He is the Law.

  2. In reply, the president argued that the literal enforcement of the law creates an impossible conundrum for him. He does not want to deport the parents of American children, as that destroys families and impairs the welfare of children; and he cannot deport children who were born here, as they are American citizens.

    Anchor baby.

    1. It’s not a conundrum if one accepts that the parents may simply choose to take their child with them rather than destroy their family.

      1. Apparently, in custody disputes between a parent in the US and a parent in another country, the US must never side with the foreign parent if the kid is a citizen? Because otherwise, we clearly do “deport” citizen minors, and the president is full of shit.

  3. Chief Justice John Roberts Jr. asked whether the president’s executive orders could be salvaged constitutionally by excising or changing a few words. This was improper because it treated an executive order as if it were a statute. It is not the job of the court to find ways to salvage executive orders as it is to salvage statutes, because the Constitution has given “all legislative Powers” to Congress and none to the president.

    This is Robertspeak for “I’m going to make shit up and rewrite the law in my head until I feel ok with upholding it.”

    1. It is not the job of the court to find ways to salvage executive orders as it is to salvage statutes,

      The court shouldn’t see it as their job to ‘salvage’ anything. Its Congress’s job to craft the legislation with due care to their Constitutional limitations. If they can’t/won’t do that then the SC should just slap this stuff down until Congress gets its act together.

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  5. Hasn’t the Admin delayed, distorted, and modified the ACA (Obamacare) more than 28 times? Why no challenge to that selective enforcement and perversion of Congress’ intent?

    Apparently the Tsar may do as he wishes.

    1. wut?

      There has been at least one challenge to the administration’s enforcement of the PPACA – the chalenge of the subsidies to state created insurance exchanges.

  6. “The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” — US Constitution, Article II, Section 2

    OK, looks like we’re done here.

    1. That did come to mind when I read that but that isn’t what he’s doing here. It is a way around the problem. However if he fast tracks pardons for people who haven’t requested it over the many who have then he opens himself up to other legal action.

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  8. The states also argued that because federal law requires them to offer the same safety net of social services for those illegally present as they do for those lawfully present

    Calling it a federal law–instead of a regulation–suggests that Congress passed a law saying this. If this concept is so horrible, why not pass a law that undoes this law?

  9. I know it is futile to say this (regardless of whether I’m speaking to Democrats or Republicans) but people who support this move of Obama’s because it moves the ball forward on immigration would do well to remember that sooner or later a president of That Other Party will occupy the White House and he will use this method to do something you don’t like, and you’ll just have to lie in the bed you made.

    1. IT’S DIFFERENT WHEN OUR TEAM DOES IT!!!!!

      /Dems and Reps, in unison.

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  15. The only real justification for Obama’s executive orders is prosecutorial discretion. That is a legitimate argument; the government’s resources are limited, and it must have some basis for prioritizing deportations. And if that’s all Obama’s orders did they would be pretty much unobjectionable. But they didn’t. In these orders Obama didn’t merely say “we’re going to put this group of people at the bottom of the enforcement list”, he also decreed that those persons would be eligible for various federal benefits, and even ordered that the states take certain actions (issuing them driver’s licenses, for example). This is wholly beyond his power, and far exceeds the legitimate limits of “prosecutorial discretion.”

    The opinions of the lower courts (I’ve read them) were well reasoned and correctly decided. If the Court upholds these overbroad and clearly unconstitutional executive orders, it will be on blatantly political grounds, not constitutional ones. And it will set a precedent for future presidents which its advocates will come to regret.

  16. Even though Prince created his own persona and obviously experimented on his appearances, I liked how he wasn’t such a…. douche bag about his image.

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  17. “Is the President….?”
    Duh!

  18. From Obama, the following. Should anything I desire run counter to the law, as created by the duly constituted law making body of this country, The Congress, devil take The Congress, and the law too, this appearing to sum up his attitude nicely..

  19. Ah yes, the endless debate over presidential powers. Contrary to the author’s assertion, through the time honored tactic of “signing statements” presidents have written substitute laws of their own making. A law that says X, Y and Z, is a different law than one that says X and Z, with impacts on A, B and C that vary from none to trivial to profound.
    ..
    Nowadays, with a permanently gridlocked congress and at least one of two parties in a “no compromise, ever” mode, the constitution the Founders left us with is a fully broken government. The only things that pass congress now are ones that neither side can find sufficient partisan advantage in to block, e,g, a non-binding resolution praising the flag, mom and apple pie.
    ..
    Under current idiot circumstances, the only rational way left to try to govern is for a president to act unilaterally and then let the courts define the limits of presidential power. Sure, we can wait until 2017 for the senate to decide if it wants to act on supreme court nominees or for the house to return to the fantasy called “regular order”. Of course, by then, congressional republicans under a democratic president may feel that things should be delayed until the 2020 elections.

    For the sake of functioning governance, voters should just blow the whole thing off and throw the bums out starting with republicans in congress and them progressing to the rest of the useless, corrupt lot.

    1. @ Non-ideologue

      “Nowadays, with a permanently gridlocked congress and at least one of two parties in a “no compromise, ever” mode, the constitution the Founders left us with is a fully broken government.”

      The entire point of the government the Founders left us with was a system of checks and balances, a competition of power among the three branches so that individual liberty is protected. It was never intended for the federal government to “do” the things that it now does. It was intended to protect secure rights and “do” a few other things. In a sense, it was supposed to be inefficient and the Constitution only amended with on rare occasions and with an exercise in “prudence.”

      The documents are all there for people to go read if they really care to. It’s not a “mystery” what the role of the government is supposed to be in our Constitutional Republic. And the government we have today is broken, not because it doesn’t do enough, but because it does too much and what it does is immoral.

      1. I get your comment about checks and balances. that’s not what I am talking about. I am talking about full blown broken government arising from a rigid no-compromise mind set. Those are two different things.

        I disagree that it’s a mystery of what the role of government is. There’s a huge mystery. The American people are deeply misinformed of what their own democracy is. What do you think the role of government is? Serving the will of the people? If that’s what you think, you are wrong: http://www.dailykos.com/story/2016/04/19/1517351/- (space) Democracy-It-isn-t-what-you-think . That’s the data (reality) speaking, not me.

        Here’s a take on one Founder’s vision (Madison) of the role of government: “James Madison made clear the US constitution embraced neither kingship nor majority rule.” https://next.ft.com/content/ (space) 2f282c30-f65f-11e5-803c-d27c7117d132

        Do you get that bit about “majority rule”?

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