Executive actions are often controversial, with members on both sides of the political divide crying foul when Congress is circumvented.
President Obama waited to issue an executive order on immigration because, he said, he wanted Congress to act. When Congress failed to act, he issued several, including what is known as DACA, the Deferred Action for Childhood Arrivals program. Was his action constitutional?
President Obama waited to issue an executive order on immigration because he understood he did not have lawful authority to countermand an Act of Congress. The decision of Congress not to enact legislation a president wants is no excuse for acting unilaterally. I realize DACA has a lot of support. I support the policy myself, and hope Congress enacts it in some form. Children brought to this country by their parents, and raised in this country, are very sympathetic candidates for admission. But the Constitution gives Congress, not the President, the power to make and to amend the laws. If President Trump called on Congress to change the environmental laws and Congress refused, this would not give Trump power to dispense with enforcement of the laws by executive action.
Can you tell us about United States v. Texas and how it relates to DACA?
The Texas case involved an order issued by President Obama on behalf of a larger and different class of person unlawfully present in the United States, but the legal arguments were essentially the same as there are with DACA. The Court of Appeals in the Texas case concluded that the DAPA order exceeded presidential power, and the Supreme Court affirmed by an equally divided vote. DACA presents the same legal issue.
Is there ever a constitutional justification for unilateral action by a president on matters such as immigration?
Certainly. The President can take unilateral action when he is authorized by law to do so. Presidents have very broad powers under the immigration statutes. President Trump’s moratorium on travel from certain Muslim-majority countries was a unilateral exercise of power delegated to the President by statute.
Why do we have executive orders—and when are they constitutional and when are they not?
Executive orders are written directives from the President exercising authority he has been given either by Congress or the Constitution. The fact that a presidential directive is called an “executive order” is of no legal significance. The President has no additional power by virtue of issuing an “executive order” as opposed to any other means of communication.
President Obama argued that DACA was within Executive Power “based on the well-established legal principle of prosecutorial discretion, deployed by Democratic and Republican presidents alike.”
But prosecutorial discretion is usually based upon individualized circumstances and DACA granted temporary legal status (and certain benefits such as work permits) to 800,000 undocumented individuals who arrived in the United States as children.
Is this faithfully executing the laws or is this legislating public policy?
What are your thoughts?
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