Is Obama’s Executive Order Unconstitutional?


Associate Justice Robert Jackson (1941-1954)

Associate Justice Robert Jackson (1941-1954)

I realize that as a Conservative Talk Radio Chat Show Host I am supposed to be screaming about the “unconstitutional” actions that President Obama is about to take in issuing an Executive Order on Immigration. Now I agree that the Presidents action would be ill-advised, wrong, and divisive instead of unifying. I also agree that he would be flying in the face of the electorate who clearly do not want such an Executive Order to be issued.

But does that make it “unconstitutional?”

The Court ruled some years ago (Youngstown Steel & Tube v Sawyer), and indeed, Justice Robert Jackson created a test to determine if an Executive Order is outside the bounds of the Constitution. It goes like this:

  • Best case – Did Congress specifically allow the action to be taken by the President? (Think Authorization of Force, or War Powers Act). If Congress allowed the action to be taken, then the Executive Order is Constitutional.

Now Consider this line of debate: In 1781, Congress specifically formed the Department of the Treasury, under the Executive Branch. In 1891, Congress decided that the Federal Government would now oversee Immigration and thus specifically established a Commissioner of Immigration in the Treasury Department, and in 1933, moved that Commissioner to a new Department of Immigration and Naturalization that answered to the President as a cabinet member. Later INS would become ICE, but remain under the Executive as specifically assigned by Congress. So… did the Congress tell the President – any President – to oversee matters of Immigration? One would have to argue that both Reagan and Bush saw that as the case when they each issued Executive Orders dealing with Immigration issues.

  • The Middle Case – Is it “unclear” as to which branch of the Government has the authority to act on the given issue?

Again, the Constitution says (Article 1, Section 8, Cause 4) that Congress “shall have the power to establish an uniform rule on Naturalization.” So did Congress exercise that power by establishing the Departments listed above?

  • Worst Case – Has Congress Specifically Said “NO” to the Executive Action?

Well… has Congress voted to stop the President from carrying out the Executive Order? Speaker Boehner has said it would “poison the well,” but that is not a Congressional vote to say “No.”

So given those facts, and the long history of Executive action by Presidents from Washington to Obama, can one actually say that the proposed Order is “unConstitutional?”

Now again, I am NOT arguing the “rightness” of the order. Again, I think that it is a bad idea and it is little more than playing politics with immigration. But is it “unconstitutional?”

Based on precedent, probably not.

Short notes this morning as I am on the way to Merced for a special appointment. If it goes well, I will be letting you know what it’s all about, if it doesn’t, well… then we have short notes today because I will be in Merced.

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Posted on November 18, 2014, in News & Notes and tagged , , . Bookmark the permalink. Leave a comment.

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