Liberty, Prudence, Imperfection, and Law

“Obama, Executive Orders, and Immigration,” By Erik Root

Editorial Note: Since Nomocracy in Politics is committed to considering issues regarding the rule of law, it is important for the web-magazine to publish multiple and differing perspectives about the legality of important governmental events. Professor Root’s thoughtful and well-crafted piece provides needed alternative perspective regarding the constitutionality of President Obama’s recent executive order.

As all my students are aware, immigration has had a varied history in the U.S.  Indeed, the first 100 years or so, there was no limitation on immigration.  Then in the late 19th Century through 20th century there were limitations of various levels and degrees.  The question before us is if Obama’s action is:

1. unconstitutional, and,

2. within the bounds of actions presidents may take?

The political concerns are secondary (will his actions help or hurt the Democrats, what should the Republicans do about gaining more share of the Latino vote?, etc.) to the above concerns.  Obama’s speech was fairly excellent and uplifting—it spoke to a part of America where at the Statue of Liberty a plaque reads,

Give me your tired, your poor, 

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tossed, to me:

I lift my lamp beside the golden door.

In other words, it all sounds very good (and who could disagree!?), but it just may not be legal to do what he is doing.  Rhetoric and law are not conspiring on this point.  But, Obama’s speech might not actually square with his authority to use the executive order to affect that intent.  Obama’s action could actually harm the Democrats badly in the short term.  Part of the reason he never got a bill on immigration was because even the bluest of blue state Democrats did not support it—they did not support it because their constituents did not support it.  And there are many Democrats who are against or are criticizing what Obama has done. But none of this can rid the nation of the simple fact that there is a policy problem before us:  what do we do with the millions of illegal or undocumented people living and working in our borders.

Obama’s legal justification from the Office of Legal Counsel is here.  At Slate, Walter Dellinger writes Obama’s action is legal.  According to Dellinger:

Perhaps what has understandably concerned critics most is not merely the deferral of deportation proceedings but the affirmative step of permitting those whose deportation is deferred to then apply for authorization to work while they remain in the United States. But here the president is not acting unilaterally nor even on the basis of an inferred discretion. He is, rather, acting on the basis of specific statutory authority from the Immigration and Nationality Act. Under that authority and by pre-existing regulation, the secretary of homeland security is authorized to grant authorization to work to those who are in the “deferred action” category. If Congress does not want those whose deportation is to be deferred to be able to work lawfully, it can certainly repeal this regulatory authority. But it has not done so, and for good reason: those who are able to demonstrate economic necessity to work will undergo background checks and pay local, state, and federal taxes, something a lot of Americans support.

The blog Balkanization has a point by point refutation that the President’s actions are illegal.  The most ironic claim is that Obama is actually fulfilling the “Take Care” clause of the Constitution by his executive act.  That might be a stretch.  The “Take Care” clause is only ONE of the president’s responsibilities.  He has others too, and sometimes he has to choose which of his many responsibilities take precedent.

Even the moderate Republican David Gergen, believes that the president has not done anything blatantly illegal, even if he walks up to the Constitutional precipice.  However, Obama has crossed an important traditional boundary:

One can argue whether this executive order is legal, but it certainly violates the spirit of the founders. They intentionally focused Article One of the Constitution on the Congress and Article Two on the president. That is because the Congress is the body charged with passing laws and the president is the person charged with faithfully carrying them out.

In effect, the Congress was originally seen as the pre-eminent branch and the president more of a clerk. The president’s power grew enormously in the 20th century but even so, the Constitution still envisions Congress and the president as co-equal branches of government — or as the scholar Richard Neustadt observed, co-equal branches sharing power.

For better or worse, Americans have always expected that in addressing big, tough domestic issues, Congress and the president had to work together to find resolution.

For a president to toss aside such deep traditions of governance is a radical, imprudent step. When a president in day-to-day operations can decide which laws to enforce and which to ignore, where are the limits on his power? Where are the checks and balances so carefully constructed in the Constitution?

If a Democratic president can cancel existing laws on immigration, what is to prevent the next Republican from unilaterally canceling laws on health care?

Exactly, but that’s what presidents have always done. Impoundment debate anyone?  In a somewhat different example, how about that Trail of Tears and Jackson’s exclamation that Supreme Court Justice John Marshall come and enforce a decision the Congress and President enacted.  The Congress is in control here:  they can pass a law, censure him, impeach him, or defund the mechanism of the law dealing with this topic.  Politically only a couple of these seem to be beneficial the Republican Party.

Legally, Obama is on shaky, but not blatantly illegal grounds.  He has violated the spirit of the Constitution, but he is no Caesar, and certainly no Cataline.   The political consequences for the Democrats may indeed, not get them what Obama thinks they will get—more voters and an unbreakable electoral coalition.  And that is what we will all be watching next—how will the Latino’s vote in 2016?  The Democrats cannot be guaranteed they’ll be with them and neither can the Republicans.

Erik Root teaches American government and political philosophy at West Liberty University. This essay was originally published at Logos Kai Apokalupsis, and it is republished here with permission from the author. 

7 Responses to ““Obama, Executive Orders, and Immigration,” By Erik Root”

  1. gabe

    Prof. Root:

    good piece and one that is apparently on target.
    Yet, it does somehow seem to be a “parchment” target that has been hit.
    Yes, one could wade through volumes of text to find support for this position (which is what OLC has done), find that target and still miss the mark as it were.
    It is in the spirit of the “parchment” where we, as modern Americans, so often fail. I believe in this case OLC has failed precisely so.
    If the intent of the law (yes, I know the problems of judicially identifying legislative intent, but it is not impossible) tends towards a rather differnet outcome than the one proposed by the executive, then ought not that prevail. You mention impoundment – but that was thwarted, was it not!

    Moreover, while it is true that power has accumulated around the executive, in many instances as the result of the congress willingly giving up it’s parchment powers, it does not necessarily follow that the either the Executive or the Legislature should continue in this manner. Recognition must be made of the intent of the Framers in establishing our constituent law (parchment, yes, but also creedal and a distinct part of a “Common Mind”), for it is this which is actually at issue here.
    The Framers did provide a remedy for these types of usurpations – i.e., those that while not clearly illegal are in distinct opposition to the sentiment of the people and the “character” of the constituent charter. That remedy is impeachment – and it is abundantly clear that it is, and WAS intended, as a political remedy for political abuses.

    You are quite right that political considerations ought not to be the ultimate decision maker – that is politics in the sense of what will benefit either of the two parties. Yet, the Framers understood that ultimately a “long train of abuses” may require a POLITICAL remedy. Whether successful or not, it ought to be pursued and with it a clear and powerful exposition as to the why’s and wherefore’s of the action. Perhaps, this could serve as an educational tool for the populace and would have the further advantage of putting the brakes on any possible GOP stupidity of a nature similar to Obama’s should they regain control of the Exectuive.

    • Peter Haworth

      Gabe, I informed Erik about your thoughtful comment. Thanks this. I will hopefully post a piece tomorrow that further considers the discretionary powers debate related to recent executive order. Based on strict originalism and the Founders’ intentions for separation of powers and Congressional supremacy (lots of assumptions here), such expansive discretion is likely unconstitutional. The debate, however, is quite interesting in that some of the scholars suggest that the breadth of prosecutorial discretion expands in an environment (such as ours) where the code has become so voluminous and over-criminalizing. When you add to this Congress’s tendency to over-delegate specific determinations to the executive branch, the range of discretion further expands.

      • gabe


        Quite right with respect to the growth of *prosecutorial discretion* – like weeds, they will grow as the environment is made ready for them.
        To my mind, the *over-delegation* syndrome is akin to the old catechism caution about the “occasions of sin” – they should be avoided lest one fall victim to sin and lose grace. We have lost a sense of grace in our politics (in both a religious/ moral AND a political sense.) The remedy ought to be to limit the occasions for improper action by cutting back not just on delegation but on an ever expanded opportunity for governmental action via Commerce Clause and other interventions.

        take care

    • Erik

      Hi Gabe,

      Thank you for your response. My post was essentially one that addressed, however briefly, that the Executive has always had the Constitutional authority to manage its office in a way that he sees fit—not making laws but the ability to selectively enforce the laws. This has ever been a political question left to the workings between the powers. While Joe Bessette (Claremont-McKenna) has noted quite nicely the rationale behind impeachment, and while it is available to the Congress, it would be political suicide at this point—and we know this because it has not really been discussed by any rational Republican to date. The reason? This is not a part of a long train of abuses. Furthermore, any immediate gains the Republicans get out of impeachment, will be met harshly by the electorate if they first don’t try to pass legislation to rein in the president. Constitutionally, they have the power—politically it would be suicide and contribute to the further decline of constitutionalism, in my opinion.

      • gabe


        Thank you for the response.

        We are agreed on the potential dangers of impeachment. I would add that it is regrettable that the likelihood of success in such a move is something less than *minimal.* Were we blessed with *virtu-ous* legislators, perhaps that would not be the case.

        My hope would be that if it came to impeachment, that the GOP would at least use it as a tool to educate the nation concerning the ongoing abuse of power that this (and yes, other) Presidents have come to believe is their rightful exercise of Constitutional authority. Once, the nation comes to understand the danger to liberty (ordered, of course) then the Legislature could, perhaps, introduce legislation intended to curtail these Executive abuses. My “long train” hyperbole aside, it can be argued that there has been a rather long list of such abuse (IRS, gun-running, etc etc) by this President; one ought to use that as an educational tool.

        As to your last sentence, if I am understanding it correctly, you are arguing that impeachment (due of course to its failure and the response of the electorate (media), would result in a further decline of constitutionalism because (?) it would only heighten partisan attitudes / inclinations. If this is the case, I must agree with you while still asserting that a successful impeachment could nevertheless lead to a renewal of constitutionalism if simultaneously used as an edifying / educational tool.

        Anyway, liked the essay. You should post more work here.

        take care

  2. gabe

    For those interested, here is a slightly different take on the claim (made also at Balkanization) that the Big O’s actions are legal and comnsistent with the Immigration and Nationality Act from today’s Liberty Law Site by Ken Masugi.

    “Yale law professor Peter Schuck, author of outstanding scholarship on immigration and citizenship, believes they violate the law:

    In the Immigration and Nationality Act, Congress carefully limited prosecutorial discretion by allowing the president to waive exclusions and deportations only under narrowly defined conditions. The act also granted the president broad power to suspend the entry of “any class of aliens” he finds detrimental to the national interest—but, significantly, did not give him corresponding authority to legalize “any class” of undocumented people he thinks deserve it.”

    The entire essay is here and offers a slightly different perspective on the issue and Obama’s actions, getting as it does beyond the “parchment” considerations of legality / non-legality:

    • Peter Haworth

      Thanks, Gabe. I am now trying complete an essay about that mess, and you have just added to my work! Kidding aside. I really appreciate you leaving this great comment and lead. The Liberty Law Site is quite excellent, and it provides a real service to all these inquires.



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