On Nov. 20, President Barack Obama addressed the nation and offered the humanitarian case for the executive order he signed the following day to confer on up to 5 million illegal immigrants relief from deportation and certain other benefits. While many applauded the president for leadership on a highly controversial issue, probably many more were greatly concerned about how it was done.
The immense background question regarding this action is whether the president has legal authority under the federal Constitution to issue and implement the order he made.
Although Mr. Obama had, on at least two dozen attempts in recent years, denied that a president has legal authority for the action he took, and a number of lawyers had concurred with this analysis, in his address he did not try to provide his justification as to the legality of his order other than a one sentence conclusionary statement alleging his authority.
Under our federal Constitution, the doctrine of separation of powers is clearly enunciated by giving to Congress legislative power and to to the president executive power. The obligation of the president as set forth in his oath of office is to faithfully execute our laws.
Supporters of the presidential order argue that the president has what is generally referred to as “prosecutorial discretion” in his administration of our laws and that a number of prior presidents had issued similar executive orders relating to immigration matters.
Opponents of the presidential action counter that the Obama order is not comparable to earlier presidential orders and the “discretion” used in the presidential order is a broad scale nullification of existing laws, a form of legislation forbidden to the president and reserved exclusively to Congress.
A judicial resolution of this dispute will almost surely be sought. The governor-elect of Texas has already announced an intent to file suit and Republicans in Congress are similarly embarked. An issue of this significance tests the boundaries of presidential and Congressional powers and is virtually certain to ultimately involve a United States Supreme Court determination.
While a cause of action for such a legal challenge is readily apparent, a potential impediment is the requirement of “standing,” which decrees that the party bringing the case must be able to demonstrate damage. This obligation can be quite elusive. There is no clear precedent as to whether a state or a member of Congress can meet this burden.
A non-judicial resolution of the presidential directive might also be mounted. The most obvious method being considered is a congressional attempt to block implementation of the program by withholding necessary funding.
Such an effort would necessarily occur in an explosive political environment. Earlier instances of Republican fund blocking were handled awkwardly and misfired.
A good part of the criticism directed at the president’s order relates to its timing. While Mr. Obama claimed there was an urgency for him to act when he did, observers have noted that when he was first elected he had pledged that immigration reform would be a high priority, but although the Democrats controlled both houses of Congress for two years, nothing was done. Thereafter, congressional control was divided.
Now, suddenly after the severe election losses for the Democrats this month, urgency has been revived. The action being taken under the Obama order is only a moderate segment of needed reform of a badly broken immigration system.
Many commentators believe that our national interest would have been better served if the president had averted a constitutional crisis and sought to work with Republicans next year to try to achieve a comprehensive, bipartisan immigration reform that would address both border security and an action dealing with the position of the roughly 11 million undocumented aliens now within our country. In my view, unless Democrats and Republicans can work together to generate reasonable solutions to the important issues dividing our country, we will continue to be beset with preventable strife. As ever, serving the national interest should always supersede narrow political advantage.
But we cannot undo that which is already done. Although Mr. Obama called for a debate on the immigration issues in his Nov. 20 speech, it may well be that the action he took foreclosed this course.
While accommodation is possible, almost certainly we will be compelled to remain helpless spectators and watch as the antagonistic and stubborn partisan forces play out.
Walter Lewis is a retired attorney who lives on Kauai and writes a regular column for The Garden Island.