Unrestrained Executive Power: Why Recent Action on Immigration Goes Too Far By: Justin Clark

Unrestrained Executive Power: Why Recent Action on Immigration Goes Too Far                     By: Justin Clark

There is no doubt that the need for comprehensive immigration reform from Washington has been overdue for several decades.  The current scheme has left millions of people living in the shadows with the constant fear of being deported.  The decades of inaction on this issue coupled with the increased level of gridlock in Washington have made the prospect of real immigration reform seem like a faint possibility.  Supporters of President Obama’s unprecedented executive action have pointed to the new policy as a fair and reasonable move that removes the constant threat of deportation facing millions of undocumented workers.[1]

However, there is more profound concern that I think has gotten glossed over by political rhetoric: the increasing growth of unrestrained executive power.  Does a president have the legal authority to make such a far-reaching move on immigration? Whether or not a president can do it, should a president have such authority to take unilateral action without the consent of Congress?  What must Washington do to prevent one branch from grabbing too much power?

Can President Obama legally take executive action on this issue?

Maybe; it is debatable at best.  President Obama relies on his executive authority in the Constitution[2] to grant, what critics call “amnesty,”[3] and work permits to millions of illegal immigrants.  In the past, presidents have granted work permits to a specific and small group of people, such as those facing a natural disaster and are unable to return home.[4] President Obama’s plan will affect a much larger population and will represent a major shift in policy.  Thus, the current executive action is much broader in scope than what other presidents have taken in the past.  While it is true that the president must have some power to act in situations where Congress cannot act, the line must be drawn somewhere.  If not, critics say, then the President could effectively grant immunity to not just half of the illegal immigrant population[5] (as it already does), but to “99.9%” of all illegal immigrants in the United States.[6]  While presidents from both parties have taken action on immigration in the past, the legality of this action is open to question given its broad scope and character.

Is unilateral, executive action a good way to ease the political gridlock in Washington? 

Not really.  While a president’s power struggle with Congress (especially one controlled by the other party) can be frustrating by nature, it is a rather weak policy reason for President Obama to sidestep the legislative process altogether on this issue.  Mark W. Davis, a speechwriter in the White House of President George H.W. Bush, wrote an article about that president’s political interaction with Democratic Senate Majority Leader George Mitchell.[7]  Senator Mitchell’s plan was to block any domestic reform that President Bush wanted.[8]  So, according to Davis, presidential advisors came up with an “aggressive” plan, through which the president would withhold congressionally appropriated funds to balance out the political power in Congress.[9]  But President Bush never went through with it.[10]  The action that President Obama has taken goes further than what President Bush had planned to do; it is a major policy decision not to prosecute millions of illegal immigrants.[11]  Given such a massive and aggressive American policy shift on the issue of immigration, the President should get consent from Congress first.

Moreover, the timing of President Obama’s action is problematic, as it comes just months after the midterm elections.[12]  Issues with reforming immigration and border security in this country have persisted for decades.  If this issue is so important, why take this action just last November?  Why not try to pass immigration reform when the Democrats controlled both houses of Congress?

Need For Cooperation in Washington is Necessary to Prevent Abuse of Power

While the substantive policies of President Obama’s executive order may or may not be desirable, those policies must involve congressional input and debate.  I am not suggesting that Republicans (and even some Democrats) have been enthused about working with President Obama on much of anything since he took the oath of office.  Just look to the passage and continued fight over the Affordable Care Act.[13]  Rather, what I am saying is that there needs to be a better way for the Executive and Legislative branches to govern together.  It is true that what President Obama might very well have accomplished with his action is to grease the wheels of political cooperation on Capitol Hill.  This, in turn, might (just possibly) push a Republican-controlled Congress to pass an eventual piece of legislation on immigration.

But on the other side of the coin, there is a not-so-positive outcome.

By effectively legalizing the presence of millions of illegal immigrants in the United States, President Obama’s action may be viewed by the incoming Congress as a political “slap in the face”[14] or “blackmail”[15] to force it to do what the president wants.  This may ignite further opposition and ruin any opportunity to get anything done on immigration or any other significant issue in the next two years.

The notion of governance by executive fiat over major federal policy decisions affecting the lives of millions—without any public debate among members of Congress—should be stamped out before it becomes the norm.  One solution might simply come from a renewed concept of cooperative, democratic governance—where members of Congress from one party actually talk with members from the other, and where congressional leaders decide to meet with the president and discuss candidly the important issues with the goal of compromise in mind.


Whatever the solution will be to immigration (and the political gridlock in general), it will have to come from President Obama and Congress working together, and not by unilateral action by one branch of government.

[1]Klein, Ezra, The Best Arguments For, and Against, Obama’s Executive Action on Immigration, N.Y. Times (Nov. 20, 2014), http://www.vox.com/2014/11/20/7253779/obama-immigration-plan-facts.

[2] See U.S. Const. Art. II.

[3] Douhart, Ross, The Great Immigration Betrayal, N. Y. Times, http://www.nytimes.com/2014/11/16/opinion/sunday/ross-douthat-the-great-immigration-betrayal.html?_r=0 (Nov. 15, 2014).

[4] Id.

[5] See Lind, Dara, Everything You Need to Know About Obama’s Action on Immigration (Card 2 of 13) (Dec. 2, 2014), Vox.com, http://www.vox.com/cards/obama-immigration-executive-action-amnesty-congress/obama-executive-immigration-reform-million-immigrants-how-many

[6] Douhart, supra note 3.

[7] Davis, Mark W., Obama’s Immigration Power Grab Will Backfire. U.S. News and World Report (Nov. 19 2014), http://www.usnews.com/opinion/blogs/mark-davis/2014/11/19/obamas-executive-order-power-grab-on-immigration-will-backfire.

[8]  Id.

[9]  Id.

[10] Id.

[11] Id.

[12] Klein, supra note 1.

[13] Parker, Ashley, House G.O.P. Files Lawsuit in Battling Health Law. N.Y. Times (Nov. 21, 2014), http://www.nytimes.com/2014/11/22/us/politics/obamacare-lawsuit-filed-by-republicans.html.

[14] Davis, supra note 7.

[15] Douhart, supra note 3.


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