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Obama’s Executive Order on Immigration: Is it Legal?



Michael A. Scaperlanda - published on 12/02/14

Action on deportation crosses the line between prosecutorial discretion and law making.

I sympathize with President Barack Obama and his desire to assist several million people in regularizing their status in the United States. As both he and President George W. Bush recognized, we need comprehensive immigration reform, including a path to legal permanent residence and citizenship for those who have sunk deep roots in the United States.

President Obama’s Executive Order, however, raises serious constitutional issues. The case of Youngstown Sheet and Tube v. Sawyer is instructive. During the Korean War, President Harry S Truman used an executive order to temporarily take control of the nation’s steel mills to avert a strike that he thought would cripple the steel industry and harm the war effort. Truman argued that he was acting within his constitutional powers and following a long line of instances where presidents had temporarily seized industry in similar circumstances.   

The Supreme Court disagreed with Truman, holding that “[t]he President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” In concluding that neither the Commander-in-Chief power nor the general executive power authorized the President’s actions, the Court held that Truman had acted unconstitutionally, affirming that “[t]he Founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times.”

Like Truman, President Obama defends his action as within his constitutional authority, arguing that he is not making policy — Congress’s job but merely exercising prosecutorial discretion  the Executive’s job. Like Truman, President Obama’s defenders, including a host of immigration law professors (many of them friends), argue that he is merely following in the footsteps of his predecessors who granted similar relief to different groups 31 times from 1956 to 2007. But President Obama’s actions differ in both magnitude and kind from these 31 other actions.

Most of these actions were very small, ranging from the hundreds to a few thousand. Notable exceptions include Cubans fleeing Castro and the Vietnamese fleeing Vietnam after our withdrawal. Only President George H. W. Bush’s 1990 action deferring the deportation of spouses and children of persons legalized under IRCA involved more than 1 million beneficiaries. President Obama’s controversial 2012 action granting deferred action for childhood arrivals, with over 1 million eligible beneficiaries, also provides precedent for the president’s latest move.

In one stroke of the pen, President Obama provided immigration relief via executive order to more individuals than all his predecessors from Eisenhower to the second President Bush combined. To grasp the magnitude of this action, the number of people eligible for relief under this executive action equal the combined populations of Alaska, Delaware, District of Columbia, North Dakota, Montana, South Dakota, Vermont, and Wyoming. If these people were all congregated in one new state, that state would be more populous than half the states in the Union.

President Obama’s action is also different in kind than actions taken by other presidents. Ten of the 31 executive actions taken by previous presidents involved congressionally authorized immigration “parole,” not prosecutorial discretion.  Additionally, 27 of 31 executive actions cited as supporting President Obama’s actions were for clear humanitarian relief in response to a specific situations such as the Soviet invasion of Hungary, violence in Central America, the crackdown on protestors in Tiananmen Square, and various natural disasters. Many of these had clear foreign policy implications, an area where the president has broad constitutional discretion.

The other four granted temporary relief to victims of domestic abuse eligible for green cards but for the noncooperation of their abusive spouses (Clinton), to family members who would have been separated when parents or spouses received amnesty under IRCA (Reagan and Bush), and persons making the case that the State Department had incorrectly calculated a visa cap (Carter).   

Although presidents do possess broad prosecutorial discretion and this discretion is concededly broad in the immigration context, President Obama’s executive order crosses the line between prosecutorial discretion and law making. Again, Youngstown Sheet and Tube is instructive. Concurring in that opinion, Justice William O. Douglas understood that “[s]talemates may occur when emergencies mount and the Nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill.” He knew that “[t]he tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority,” but “with memories of the tyrannies produced by a blending of executive and legislative power [the Constitution’s Framers] rejected that political arrangement.”

Douglas continued, “[w]e pay a price for our system of checks and balances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many.” Although “today a kindly President” might use this power for the good, “tomorrow another President might use the same power” for ill. In short, allowing the president to exercise such policy making power would “most assuredly alter the pattern of the Constitution.”

Under our Constitution, differences over immigration policy must be resolved in the rough and tumble of legislative action, not through the pen of the president. If he fights in that forum, I am with him all the way on immigration reform.

Michael Scaperlanda is the Edwards Family Chair in Law at the University of Oklahoma College of Law where he has taught Immigration Law and Constitutional Law for nearly 25 years.

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