That's An [Executive] Order

[Michael Hardner]

A year ago, during another immigration speech, a heckler insisted, “You have a power to stop deportations.” Obama replied: “Actually, I don’t, and that’s why we’re here. . . . What you need to know, when I’m speaking as president of the United States and I come to this community, is that if, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal that you want to achieve.”

Obama has now officially abandoned the harder path — not because the issues surrounding immigration will never be resolved (a case no one has adequately made) but because he wants to be the president to resolve them. Since our democratic process has proved disappointing during his time in office, we get a convenient reinterpretation of tradition — using a history of reasonable discretion in tying up the loose ends of a law to justify a major policy shift in the absence of law. This is motivated reasoning on steroids — and future presidents of both parties will likely find it appealing, on a variety of issues.

http://www.washingtonpost.com/opinions/michael-gerson-president-obama-leaving-the-harder-path-on-immigration/2014/11/20/9a70e5f8-70e7-11e4-893f-86bd390a3340_story.html

The immigration question in the US will receive a solution, but without the legislature being involved. It seems to me that the invocation of this practice as it is a bellweather of a political process that it headed towards breaking... somehow.

And the political challenge I refer to is happening elsewhere too: in Europe, and in Canada. We have our own version of avoiding the legislative process called prorogation.

The question I have is: irrespective of the party politics, where is this all going ?

[sharkman]

I have found that there is nothing new under the sun. Therefore, would there be examples of doing an end run around governing bodies in Britain or European countries(or elsewhere in history), and what it led to? Also, this one move of Obama, giving millions of immigrants or foreigners amnesty or citizenship, has anything like this been done before?

[bush_cheney2004]

The U.S. has done this before, but always in concert with Congress....i.e. legislation. Not much has changed, except that illegals are now called "undocumented workers" and the huge agriculture industry still needs migrant farm workers, many of whom are in the U.S. illegally. Nixon, Ford, Carter, and Reagan all had a go at it:

Reagan’s stance was as clear at the end of his presidency as it was when he signed the bill.

“I’ve spoken of the shining city all my political life,” Reagan said in 1989 as he left office, “but I don’t know if I ever quite communicated what I saw when I said it. But in my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and heart to get here.”

Edited November 21, 2014 by bush_cheney2004

[sharkman]

Are you comparing what Obama(" I unfortunately just can't do it with the stroke of my pen") did to Reagan's signing of the Simpson-Mazzoli Act? The bill, voted on by Congress and then signed into law by Reagan?

[bush_cheney2004]

No, I am just pointing out that this issue is hardly new and has been addressed many times before, complete with political backdrop and drama. I agree that it should follow the legislative process and rigorous enforcement by the executive branch.

[cybercoma]

No, I am just pointing out that this issue is hardly new and has been addressed many times before

so?

[Big Guy]

If it is such a major mistake then the next President, Congress and Senate can change it. On the other hand, if it is a sensitive political issue then maybe they will not change it. Adios!

[sharkman]

No, I am just pointing out that this issue is hardly new and has been addressed many times before, complete with political backdrop and drama. I agree that it should follow the legislative process and rigorous enforcement by the executive branch.

The issue of granting 5 million(?) amnesty by executive order has not really been addressed, and Obama's grown fond of his pen these last few years. I'm wondering if this rabbit hole leads anywhere, other European countries have no doubt wandered down it as well, no?

Edited November 21, 2014 by sharkman

[Topaz]

Thoughts on this on US TV was that those 2 million people have jobs and if they were sent back many employers wouldn't have workers and those workers do jobs that most Americans wouldn't do. It also, breaks up families because their children are American citizens.

[sharkman]

It was more than 2 million, nobody was being sent back, and no families would be "broken' up. In fact, the wing nut parents that sent their children alone to America this past year broke up their own families.

[bush_cheney2004]

True, but that doesn't address the children who are U.S. citizens with illegal undocumented parents.

[sharkman]

True, but that doesn't address the children who are U.S. citizens with illegal undocumented parents.

I think I agree with you. Obama should have involved Congress, but he needs to realize that Congress is not a rubber stamp. Bush was able to work with Congress, I still can't figure out why Obama has such disdain for it.

I saw some of his statement when announcing his decision. He said he had waited for Congress to allow an up or down vote, which is of course more of his B.S. He didn't have the cajones to do this last winter, spring or summer because he knew he would pay for it during the mid terms. So he puts his political goals ahead of the illegals that he feigned such concern over. He lost the Senate anyway and now we are seeing a bitter man who will do whatever he wants because he has nothing left to lose. Which is a big reason Congress and the Senate exist, to provide checks and balances.

I think the last 2 years are going to be bumpy, up next is Iran and a nuclear deal.

[Bonam]

http://www.washingtonpost.com/opinions/michael-gerson-president-obama-leaving-the-harder-path-on-immigration/2014/11/20/9a70e5f8-70e7-11e4-893f-86bd390a3340_story.html

The immigration question in the US will receive a solution, but without the legislature being involved. It seems to me that the invocation of this practice as it is a bellweather of a political process that it headed towards breaking... somehow.

The executive order is far from a solution to the immigration question in the US. It makes some changes to some of the issues, but the majority of the problem remains. The legal immigration system needs a serious overhaul, which this executive order does not (and cannot) provide for. That is one of many issues left unaddressed. Congress will have to pass immigration reform eventually, or allow the nation to continue to be mired in the status quo, which is the more likely option for the foreseeable future.

As for the practice of executive orders... it seems obvious that the president will use whatever powers are granted to him/her to do so. America's political system is based on a written constitution and systems explicitly described in documents, it is not like British and Canadian systems where power is only vaguely defined in documents but instead comes from tradition/precedent. Given the Republicans control both chambers of congress, the scope of what a president can and cannot do with executive orders will likely be tested in the supreme court before too long, and that will be that.

[Michael Hardner]

Given the Republicans control both chambers of congress, the scope of what a president can and cannot do with executive orders will likely be tested in the supreme court before too long, and that will be that.

Thank you for your informative post.

[jbg]

I have found that there is nothing new under the sun. Therefore, would there be examples of doing an end run around governing bodies in Britain or European countries(or elsewhere in history), and what it led to? Also, this one move of Obama, giving millions of immigrants or foreigners amnesty or citizenship, has anything like this been done before?

I am torn on the issue. Presidents in the past have seized factories in war time to keep them running. My concern is that the power to issue executive orders could be exercised in a ridiculously expansive manner. In theory to abolish freedom of speech or religion.

The First Amendment to the U.S. Constitution reads (link):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

By its terms the First Amendment restrains only Congress, and by way of the 14th Amendment state legislatures. Could Obama issue an executive order forbidding the Republican Party to speak on behalf of its candidates? Could he issue an order forbidding Republican candidates to campaign on their own behalves? Could Obama forbid the practice of Judaism, Christianity or Islam? Who knows?

Or could the Supreme Court forbid such actions based upon some vague limit to executive powers, see Youngstown Sheet & Tube & Co. v. Sawyer (link to decision), 343 U.S. 579 (1952) and discussion in The Story of the Steel Seizure Case, by Patricia L. Bellia (link).

In this famous concurring opinion, Justice Jackson (formerly an Assistant U.S. Attorney involved in similar seizures under Roosevelt) said:

The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic.

***********

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

****************

But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

****************

The essence of our free Government is "leave to live by no man's leave, underneath the law" -- to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

Given the Republicans control both chambers of congress, the scope of what a president can and cannot do with executive orders will likely be tested in the supreme court before too long, and that will be that.

The Supreme Court, as you can see from the above quotations from the Steel Seizure case concurrence, does not like to involve itself in disputes between co-equal branches of government.

What is troubling here is the impact of Congressional paralysis. President Gerald Ford was said to have "governed by veto." The normally conservative New York Sun editorially supported Obama's move on immigration as his "finest hour." (link to editorial). The New York Sun stated:

President Obamas immigration speech last night could yet go down as his finest hour. No doubt there are those who will retort that this isnt saying a whole lot, given the disappointments of his presidency. But we are among those on the right who reckon that if we want as we do the free movement of trade and capital we also need the free movement of labor. Nor does the free movement of people burden our economy. The virtue of our system of democratic capitalism is that it incents individuals to produce more than they consume, so that the more is the merrier.

I personally favor immigration but am highly troubled by his constant usurpation of power.

As you can see I am quite torn, since on one hand Congress has doubtlessly abdicated power, and on the other Obama has usurped power. As a former professor of constitutional law he should know better. Certainly I fear that he could undertake such a modest proposal as I indicated in the thread title and earlier quotation of text of First Amendment.

Thoughts?

Edited November 22, 2014 by jbg

[Big Guy]

Obama did what he did because ... he can. Any subsequent government can rescind his "proclamation" but it will be their ticket to losing the next election.

If what he did was not constitutional then it will not become law.

I believe it is the same kind of power that allows a president to pardon numerous criminals when he/she leaves office.

[jbg]

Obama did what he did because ... he can. Any subsequent government can rescind his "proclamation" but it will be their ticket to losing the next election.

If what he did was not constitutional then it will not become law.

I believe it is the same kind of power that allows a president to pardon numerous criminals when he/she leaves office.

The pardon power is explicitly granted in the Constitution. The power to issue executive orders is not. However, it is implied since I suppose it evolved from the "orders in council" that were and are used when Parliament is in recess or prorogue or during general election times. In this case Obama is either just at or over the limit of his authority.

[Big Guy]

I do not disagree but that is the beauty of the American system. If Obama has passed the limits of presidential authority then the other part of the "checks and balance" - the Supreme Court - will make that decision.

[sharkman]

The Supreme Court of the land is not typically meant as a political check and balance.

[Smallc]

Since when?

[Big Guy]

I disagree with sharkman. I believe that successful democracies are set up so that power is spread out among 3 or 4 parts of the government so that no one part is able to usurp power. Each part serves as a check against the others and the different parts working in step with each other provides the balance.

[On Guard for Thee]

Since when?

Since always. It's meant to uphold the constitution and the charter, not to take sides with any political party.

[jbg]

I do not disagree but that is the beauty of the American system. If Obama has passed the limits of presidential authority then the other part of the "checks and balance" - the Supreme Court - will make that decision.

The Supreme Court of the land is not typically meant as a political check and balance.

Since when?

The Supreme Court has often crafted decisions so as to make them likely to be enforced. The first example was teh Marbury v. Madison decision. The Court was being asked to force Jefferson to carry through on appointments made by Adams at the end of his term, the so-called "midnight" appointments. The Court was correctly concerned with defiance so it crafted the remedy of declaring the legislation under which Marbury requested action unconstitutional.

Ditto in more moder times in Bush v. Gore in 2000. Most people don't realize this but the Florida Legislature, under GOP control, had the perfect right to send any slate of electors in for the Electoral College. This right is almost never exercised but the Legislature may well have concluded that a highly contested vote separated by 700 some odd in a very populous state was not a mandate. The Supreme Court basically awarded the election to Bush (technically by stopping the recount) in order to avoid a constitutional porcess.

The Supreme Court for that reason does not like to get into fights among co-equal branches. In your country that's not a problem since the executive (functionally though not on paper) sits in Parliament. The GG very rarely exercises true executive power.¹

¹In 1975 Australia's GG turfed the PM. That is truly rare.

[bush_cheney2004]

.....Ditto in more moder times in Bush v. Gore in 2000. Most people don't realize this but the Florida Legislature, under GOP control, had the perfect right to send any slate of electors in for the Electoral College. This right is almost never exercised but the Legislature may well have concluded that a highly contested vote separated by 700 some odd in a very populous state was not a mandate. The Supreme Court basically awarded the election to Bush (technically by stopping the recount) in order to avoid a constitutional porcess.

True, but Bush v. Gore was ultimately decided in Bush's favour because of the 14th Amendment to the U.S. Constitution's Equal Protection Clause that made the state's recount remedy unconstitutional. So in this case it was the existing constitutional framework that guided the justices to the "proper" technical decision. The system worked....the nation survived.

[jbg]

True, but Bush v. Gore was ultimately decided in Bush's favour because of the 14th Amendment to the U.S. Constitution's Equal Protection Clause that made the state's recount remedy unconstitutional. So in this case it was the existing constitutional framework that guided the justices to the "proper" technical decision. The system worked....the nation survived.

You're mistaking verbiage for what really happened. There is not a chance that Florida was going to send Gore electors. The Court made a virtue out of necessity.