As all my students are aware, immigration has had a varied history in the U.S.  Indeed, the first 100 years or so, there was no limitation on immigration.  Then in the late 19th Century through 20th century there were limitations of various levels and degrees (as noted in the Bessette and Pitney textbook).  The question before us is if Obama’s action is:

  1. unconstitutional, and,
  2. within the bounds of actions presidents may take?

The political concerns are secondary (will his actions help or hurt the Democrats, what should the Republicans do about gaining more share of the Latino vote?, etc.) to the above concerns.  Obama’s speech was fairly excellent and uplifting—it spoke to a part of America where at the Statue of Liberty a plaque reads,

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me:
I lift my lamp beside the golden door.

In other words, it all sounds very good (and who could disagree!?), but it just may not be legal to do what he is doing.  Rhetoric and law are not conspiring on this point.  But, Obama’s speech might not actually square with his authority to use the executive order to affect that intent.  Obama’s action could actually harm the Democrats badly in the short term.  Part of the reason he never got a bill on immigration was because even the bluest of blue state Democrats did not support it—they did not support it because their constituents did not support it.  And there are many Democrats who are against or are criticizing what Obama has done. But none of this can rid the nation of the simple fact that there is a policy problem before us:  what do we do with the millions of illegal or undocumented people living and working in our borders.

Obama’s legal justification from the Office of Legal Counsel is here.  At Slate, Walter Dellinger writes Obama’s action is legal.  According to Dellinger:

Perhaps what has understandably concerned critics most is not merely the deferral of deportation proceedings but the affirmative step of permitting those whose deportation is deferred to then apply for authorization to work while they remain in the United States. But here the president is not acting unilaterally nor even on the basis of an inferred discretion. He is, rather, acting on the basis of specific statutory authority from the Immigration and Nationality Act. Under that authority and by pre-existing regulation, the secretary of homeland security is authorized to grant authorization to work to those who are in the “deferred action” category. If Congress does not want those whose deportation is to be deferred to be able to work lawfully, it can certainly repeal this regulatory authority. But it has not done so, and for good reason: those who are able to demonstrate economic necessity to work will undergo background checks and pay local, state, and federal taxes, something a lot of Americans support.

The blog Balkanization has a point by point refutation that the President’s actions are illegal.  The most ironic claim is that Obama is actually fulfilling the “Take Care” clause of the Constitution by his executive act.  That might be a stretch.  The “Take Care” clause is only ONE of the president’s responsibilities.  He has others too, and sometimes he has to choose which of his many responsibilities take precedent.

Even the moderate Republican David Gergen, believes that the president has not done anything blatantly illegal, even if he walks up to the Constitutional precipice.  However, Obama has crossed an important traditional boundary:

One can argue whether this executive order is legal, but it certainly violates the spirit of the founders. They intentionally focused Article One of the Constitution on the Congress and Article Two on the president. That is because the Congress is the body charged with passing laws and the president is the person charged with faithfully carrying them out.

In effect, the Congress was originally seen as the pre-eminent branch and the president more of a clerk. The president’s power grew enormously in the 20th century but even so, the Constitution still envisions Congress and the president as co-equal branches of government — or as the scholar Richard Neustadt observed, co-equal branches sharing power.

For better or worse, Americans have always expected that in addressing big, tough domestic issues, Congress and the president had to work together to find resolution.

For a president to toss aside such deep traditions of governance is a radical, imprudent step. When a president in day-to-day operations can decide which laws to enforce and which to ignore, where are the limits on his power? Where are the checks and balances so carefully constructed in the Constitution?

If a Democratic president can cancel existing laws on immigration, what is to prevent the next Republican from unilaterally canceling laws on health care?

Exactly, but that’s what presidents have always done.  Impoundment debate anyone?  In a somewhat different example, how about that Trail of Tears and Jackson’s exclamation that Supreme Court Justice John Marshall come and enforce a decision the Congress and President enacted.  The Congress is in control here:  they can pass a law, censure him, impeach him, or defund the mechanism of the law dealing with this topic.  Politically only a couple of these seem to be beneficial for the Republican Party.

Legally, Obama is on shaky, but not blatantly illegal grounds.  He has violated the spirit of the Constitution, but he is no Caesar, and certainly no Cataline.   The political consequences for the Democrats may indeed, not get them what Obama thinks they will get—more voters and an unbreakable electoral coalition.  And that is what we will all be watching next—how will the Latino’s vote in 2016?  The Democrats cannot be guaranteed they’ll be with them and neither can the Republicans.