In the aftermath of the Supreme Court’s 4-4 decision that halted President Barack Obama’s immigration executive order, Democratic lawmakers, Hillary Clinton, and Obama himself opted to focus on the politics of the moment rather than offering reasons for why the Fifth Circuit was wrong in concluding that Obama’s executive action exceeded the bounds of his authority.
Clinton tweeted, “Today’s heartbreaking #SCOTUS immigration ruling could tear apart 5 million families facing deportation. We must do better.” Likewise, Obama said, “I think it is heartbreaking for the million of immigrants who made their lives here …”
But the merit of a policy position is never an excuse to ignore the limits of executive authority.
The bedrock principle of separation of powers ought to be upheld regardless of the (D) or (R) that rests behind a given president’s name. Whether it be striking down Obama’s unconstitutional appointments to the National Labor Relation Board or denying George W. Bush the power to compel state officials to abide by an unenforceable international treaty, the Court should work to uphold the sacred principles of the Constitution no matter its partisan preferences or the supposed merits of policy prescriptions. And it is through this lens that today’s ruling in United States v. Texas ought to be viewed.
On 22 separate occasions, Obama stated plainly that he did not have the authority to grant legal status to millions of illegal immigrants. And in a 2011 Univision Town Hall, he said, “With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed… for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.”
Despite his self-proclaimed denial of authority, the President nevertheless acted when he granted de facto legal status to 5 million undocumented immigrants.
Appropriately, and in accordance with the President’s own description of his constitutional bounds, the Supreme Court righted the wrong, at least temporarily, when its split decision blocked the President’s questionable actions by leaving in place the Fifth Circuit’s decision, which halted the President’s executive action as the case in question proceeds and dubbed it “‘manifestly contrary’ to the INA [Immigration and Nationality Act].”
To understand the constitutional rationale of the Fifth Circuit, perhaps it is worth going back to basics. When the President acts, he must do so pursuant to constitutionally enumerated Article II powers or statutory power allocated to him by Congress. The President had neither the constitutional nor statutory authority to implement his executive order, known as the Deferred Action for Parents of Americans (DAPA).
With regard to the Constitution, the power to create “a uniform rule of naturalization” does not rest in Article II, but in Article I, making it a power of Congress and not the President.
As for a statutory basis, INA puts in place a uniform scheme for naturalization, which the President may not overrule or rewrite as Obama effectively did with DAPA. Though he may have the right to veto a bill at the time of signing, he may not likewise override a statute. The Fifth Circuit succinctly explained how Obama did just this: “DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status without complying with any of the requirements… that Congress has deliberately imposed.”
Had the Supreme Court upheld Obama’s executive action, the consequences would have been cataclysmic. The Court would have essentially sanctioned the President acting as lawmaker — not law enforcer. This should be alarming to Democrats and Republicans alike.
Obama’s executive order, though, should not have come as a surprise. Obama has repeatedly signaled his willingness to overrule Congress. In 2014, for instance, he warned, “We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone.”
But ruling by executive fiat is never an alternative to the lawful process set forth in our Constitution. When faced with what Obama perceives as a recalcitrant Congress, he can facilitate cooperation much like President Ronald Reagan and Speaker Tip O’Neill did or he can advocate for electoral change, but he cannot ignore the text of the Constitution. Doing so puts our system of checks and balances at grave risk. As Justice Robert Jackson said in his landmark concurrence in the infamous Youngstown case, “[W]hat is at stake is the equilibrium established by our constitutional system.”
For this reason, short-term politics must never overcome long-term constitutional consequences.
The late Justice Antonin Scalia stated this best when he said, “We should … take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand.”
