Immigration Reform Through Executive Order

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President Barack Obama’s use of executive orders to facilitate immigration reform may be bold and controversial, but it likely does not violate the U.S. Constitution.

To simplify what an executive order is, think of it this way: a government’s chief executive can manage the operations of the executive branch of government through executive orders in much the same way as the CEO of a business can manage a company through memos.

Legal Basis for the Executive Order

The power of the President is set forth in the U.S. Constitution. Under Article II, section 1, “The executive power shall be vested in a president of the United States of America.” Article II, section 3 further states that, “The President shall take care that the laws be faithfully executed…” While neither provision expressly authorizes the president to “go it alone,” presidents have issued executive orders since the earliest days of our country.

Historical Use of the Executive Order

George Washington issued the first executive order in 1789 and made seven more during his tenure. Nearly 150 years later, President Franklin D. Roosevelt issued a record 3,522 executive orders. Abraham Lincoln likely issued the most famous executive order in the form of the Emancipation Proclamation.

In the modern day, Obama’s use of executive orders pales in comparison to his predecessors. As of October, the President has issued 193 executive orders, the lowest total of any two-term president since Theodore Roosevelt. By comparison, George W. Bush issued 287 executive orders between 2001 and 2009, and William J. Clinton issued 308 executive orders between 1993 and 2001, according to the Office of the Federal Register.

Challenging an Executive Order

Congress can pass legislation to undo an executive action. However, any proposed measure would be subject to presidential veto power. The Supreme Court can also declare an executive order unconstitutional as it would any other law.

In Youngstown Sheet and Tube Co. v. Sawyer, the Court vacated an executive order by President Harry Truman directing the Secretary of Commerce to seize and operate most of the country’s steel mills after finding that it was not authorized by the Constitution or laws of the United States.

According to the majority, the authority to take possession of the steel mills could not be implied from the aggregate of President Truman’s powers under Article II of the Constitution. Rather, the power at issue was the lawmaking power, which the Constitution vests in the Congress alone. “The President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker,” the majority held.

While the Youngstown case conforms that the President’s power to issue executive orders is not unfettered, it may not help challengers to President Obama’s immigration plans. Here, the President is not seeking to make new law, but will effectively pardon certain illegal aliens living in the United States through a new amnesty program.  The President has this power within his executive powers.

(To the handful of readers who have experience with executive orders: Yes, I know I am oversimplifying things in exchange for clarity and brevity.)

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. Immigration Reform Through Executive Order