The Executive Over-Reach Debate Turns To Immigration

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I have received a fair number of emails over the debate last week featuring my views on executive power on the Senate floor. The debate concerned the growing fight over immigration and I have been asked by journalists if I believe that the President is also violating the Separation of Powers with the suggestion of unilateral measures in the area. I am indeed troubled by the suggestion of a new round of unilateral actions by the President. However, the details are still unclear.

The display used in the Senate debate featured a quote from my recent testimony before the House Rules Committee on July 16, 2014:

“The President’s pledge to effectively govern alone is alarming, and what is most alarming is his ability to fulfill that pledge. When a president can govern alone, he can become a government unto himself, which is precisely the danger the framers sought to avoid . . .
What we’re witnessing today is one of the greatest crises that members of this body will face . . . it has reached a constitutional tipping point that threatens a fundamental change in how our country is governed.”

(I am inclined now to give all my future congressional testimony on huge blue boards like this one for emphasis).

I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column listing such incidents of executive over-reach. My prior testimony has discussed unilateral actions in the immigration field that do raise separation issues.

I have also noted that some of these actions probably do fall within the strike zone for the president in using executive power. In areas like environmental law, the president has been given broader authority under statutes like the Clean Air Act. The problem is that the President has not offered details on the new round of unilateral actions. Some reports indicate that millions might be given new status. Of course, even concluding that the President can act does not mean that he should act without congressional action. Major changes in these areas should not be the result of unilateral action in my view. The Madisonian system is designed to allow different constituencies to come to bear in the bicameral system to take factional disputes and convert them into majoritarian compromises. The result has greater legitimacy as the result of the legislative product and often constitutes a better product after being put through the difficult drafting and amendment process. During times of division, less may get done. Both sides must either compromise or seek to change the balance of power in the next election. If the country and Congress is too divided to reach a compromise, unilateral action will only deepen the questions of legitimacy and over-reach.

We will have to wait to see the specific unilateral actions to judge their constitutionality. However, for those of us who are uncomfortable with the rise of the über presidency in the United States, the suggestion of a president dictating a massive change in the status of millions of people raises many of these same concerns.

39 thoughts on “The Executive Over-Reach Debate Turns To Immigration

  1. Yes, we have to wait to see what actions are taken, if any. Of course, Congress could preempt the President and actually do something for the good of the country.

  2. The Executive overreach turns to the Judicial. A recent assessment was that the ACA law was clear with supporting statements by its author and that there is a strong argument for Supreme Court review. The SCOTUS issued a political decision previously on the ACA. If it subjectively decides on the ACA by political affiliation a second time, Judicial overreach will be a fact.

    This will be the “tipping point’s” sequel.

    “When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle.”

    Edmund Burke – 1770

  3. For a president who has issued far fewer executive orders than any president since FDR, in an environment where congress has expressly focused all their non-fundraising time on blocking this president at every turn and as a result has produced precious little useful legislation, and plenty of near-crises, I personally welcome his attempt to accomplish at least something, as long as it doesn’t overstep the strictest interpretation of the limits of his authority.

  4. It’s not the number of executive orders, it’s what they are about. Most executive orders have to do with mundane issues that simply keep the government functioning, something in which our current president seems uninterested. One executive order is too many if it usurps the constitutional role of the Congress.

  5. So what if the House passes an immigration bill that puts teeth into enforcement, there is no guarantee it will get past Harry Reid or get signed by Obama. That doesn ‘t give Obama the right to cram it down the rest of the country. Plus, comparing raw numbers of executive orders per president is not a good way to measure overreach.

    Squeeky Fromm
    Girl Reporter

  6. Whne the Commander in Chief dropped the bomb on Hiroshima there were those in Congress who thought that he should have had a Congressional approval resolution and those in the public who thought that the Commander in Chief was over stepping his bounds.

    This week (July month) and all of August you will find your Congressman at his home district or off in Europe on the tab of the Koch Brothers. He/she will be drumming up money for self and others (not you). Yes they are quite concerned with immigration and all sorts of other issues. We dont need a President to step up to the plate do we JT?

  7. Our President has done nothing more, than he has shown empathy for struggling Americans. Forced to choose, circumventing the treasonous republican’t pack of Feral Hogs, slopping it up at the trough of greedy wealth, he has done his very best. While he may indeed have done things he can be criticized for on technical points in, the end he has IMO been one of our greatest Presidents, and who will not be recognized as such. I doubt he will care about that, and will continue to put America first in his heart.

  8. “During his floor speech, Sessions endorsed a bill from Sen. Ted Cruz (R-Texas) that aims to curb the president’s executive amnesty efforts—and called on his colleagues to cosponsor it.

    Sessions said:
    Senator Cruz has a bill that would stop this presidential overreach. Sessions said. It’s very simple. It lays out that we won’t spend money providing legal documents to people unlawfully in the country as defined by the law of America and as defined by the Congress of the United States. So, I will ask, will you cosponsor Senator Cruz’s bill and let’s defend our constituents, or will our congressional colleagues remain complicit in the nullification of our laws and basically the nullification of border enforcement?

    Sessions’ fiery floor speech focused almost entirely on how Congress hasn’t done much—if anything—to fight back against President Obama’s executive overreaches when it comes to immigration law.”

  9. Mr Turley, there are two disturbing trends here. You’ve been clear about the first: an Executive Branch deciding to govern by fiat, daring the other two Branches to stop it. The other trend is just as disturbing: people like Carlson, Beldar, Frustrated, who hold that it’s not just OK that power is being accumulated by Obama, but who welcome and encourage it.

    History is replete with “leaders” who convinced their “people” that if the people would only allow the leader more control, more power, and their support for how it’s used, then the leader would finally (!) be able to defeat evil and provide goodness.

    Unfortunately, that pattern has not been discarded. Clearly it was the path taken by Hitler, Lenin, Mao, all examples, now dead, from the mid-20th century. But the new breed comprises Putin, Iran’s Ayatollah, several African dictators.

    So here we are, replaying 1912, 1933, 1947.

    So, next we’ll hear from Obama’s Sheeple who will say: a) Bush did it, too !!!!, b) the Koch Brothers are doing it!!!!, c) that since I disagree with Obama, I must be a racist. Or the last resort of small minds: d) He had no choice, Congress made him do it!!!

  10. Here’s the paradox. Behind the scenes Dems are saying this President has checked out. He is golfing as often as a retired insurance executive. He is doing fundraisers more than any other prez. He is hobnobbing w/ the elite and shopping for a house in Palm Springs. He’ll be spending 17 days in Martha’s Vineyard. These executive orders are indicative of a narcissistic child, angry that he is not getting his way and saying, “Nana nana boo boo.” I thought Dems were supposed to be smart and hardworking. This prez needed a kick in the ass by his wife and Valerie Jarrett when he was phoning it in during the 2012 election. He doesn’t want to be President because it takes skills he does not have. LBJ would have had immigration reform done 5 years ago. He was a politician. This guy is a demagogue.

  11. He hasn’t said what he will do and yet already he is being criticized for what you/the right don’t even know may/might be done, if it is done.

  12. leej, He is floating leaks out there via Dem pols. Luis Gutierrez, Dem Representative from Chicago, says amnesty for 5-6 million illegals. I agree we don’t know what he’ll do, but he is trying to see what he can do w/o starting impeachment. Or, maybe to start impeachment in a Machiavellian way.

    CNN just released a poll. If given a do over in the 2012 election Romney wins 53-44%, but still would lose to Hillary.

  13. Romney loses to Hillary 55 -42 in that poll. If Romney reads that poll, he won’t be running again although I think he would like to because the potential republican candidates are certainly lacking. i think Texas tea partiers Rick Perry or Ted Cruz should get the nod Ted Cruz ,along with Jeff Sessions. is certainly pushing the anti-immigrant meme.

  14. The NJ fat boy is moving up quickly. The only people who care about the GWB scandal are people who would never vote for him anyway. And there was a traffic scandal w/ Obama hobnobbing around LA last week. A pregnant woman was not allowed to cross the street to the hospital because of the motorcade. Not while it passed, but for 30 minutes prior also! She damn near had the baby on the sidewalk, but was able to hold on until she got into the delivery room.

  15. Six years ago I was giving Obama a serious look to see if I could support his candidacy. As a Republican, I was prepared to change but I was not going to do that without knowing as much as possible. I couldn’t find anything from his political record to condemn him, but then again nothing to support. His greatest accomplishment seemed to be his gig at Harvard; or maybe it was his rise to the top of the ticket. Either way, he carried no political baggage and he really had a motivational message. Now, about that message and one statement in particular.

    “We are just X days away from a FUNDAMENTAL TRANSFORMATION of America. When I heard that, I did what any critical-thinking citizen should do, I began trying to find out what Obama’s vision was for America AFTER this transformation was completed. To this date, I have not seen one person ask Obama what he believed America would look like after it was fundamentally transformed. I believe we are seeing it and it’s got nothing to do with policy and everything to do with process. Because I couldn’t get an answer, I decided not to support him.

    What if this Constitutional law professor discovered a weakness in the separation of powers? What if he had an enabling Congress or at least one chamber; what if he had the support of the Attorney General; what if he had a pen and a phone; what if he was able to overwhelm a traditionally slow-moving legislature by executive order or bureaucratic regulation; what if the major media outlets functioned as the White House communicator; what if impeachment would never be on the table; what if the citizens cared little about the process and more about the policy; what if he used the IRS to silence political speech; what if, the fundamental transformation was ALL about HIM; what if it was about separating the Legislative branch from their Article II powers; what if his legions of supporters were convinced the framer’s had it wrong; that the “intellectual elite” could outsmart human nature?

    Wouldn’t we then have what we’ve got; a constitutional tipping point and JT’s Uber President?

  16. Nick Spinelli

    Dems fear the fat Italian.
    Thus, they fear all Italians.

    Rogic … stay thirsty my X friends …

  17. JO – “I began trying to find out what Obama’s vision was for America AFTER this transformation was completed. To this date, I have not seen one person ask Obama what he believed America would look like after it was fundamentally transformed.”

    Interestingly, the Founders required the President be a “natural born citizen” to preclude “foreign allegiances” with attendant adverse motives. The Law of Nations defined natural or native citizens as having “parents,” plural. The Founders increased the wording of the requirement in the Constitution at the last minute to “natural born citizen” from “citizen.” They RAISED it to the highest requirement for the highest office. Obama’s father was a foreign citizen. Few knew Obama’s intentions or motives. Obama apologists deny the relevance of the Law of Nations.

    Below is the Judiciary Act of 1789 which was the subject of the seminal Marbury v. Madison. Clearly there is a literal reference to the “law of nations;”

    “as a court of law can have or exercise consistently with the law of nations.”

    As the phrase was casually used herein, it appears the “Law of Nations” was on the minds of those who wrote this Act.

    An association with the phrase and the “Law of Nations” itself is demonstrated herein. With Franklin’s letter stating that the “Law of Nations” had been “pounced on” by the Framers and other evidence, a direct American association with the “Law of Nations” is irrefutable. The requirement of two “parents” who were citizens would have precluded the candidacy of the current ineligible President whose intentions are nebulous if not maliciously subversive.

    Additionally, all the Presidents, except one who lied and defrauded, acted

    “consistently with the Law of Nations”

    as both of their parents were citizens.


    1789 Judiciary Act

    SEC . 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise

    consistently with the law of nations;

    and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

  18. rafflaw,

    In the context of immigration, what is “for the good of the country?”

    I would say overpopulation is the source of pollution so reducing the population would be very for the good of the country. Immediate and complete deportation would be really good for the country.

    Enforcing the law might be for the good of the country. I think it’s illegal to cross the border without going through the checkpoint. It might be illegal to drive without a driver’s license. Let’s check. Is it for the good of the country that EVERY SINGLE PERSON IN THE WORLD WHO HAS A HARDSHIP IS COMPREHENSIVELY PROVIDED FOR BY THE AMERICAN TAXPAYER? Or just your friends; your victims/martyrs du jour? What are your criteria for the provision of free stuff? Is it good for the country to impose confiscatory taxation to pay for tuition at $25K annually for every illegal alien? Maybe it’s good for striking union teachers/babysitters, translators, immigration attorneys, government-paid healthcare/social services providers, etc.

    Seems like America was established to get rid of tyrannical and oppressive monarchs and you argue to forcibly impose both. You’re in America and you lobby against freedom and self-reliance.

    That dudn’t make any sense!

    If Americans were free, they could privately go all around the world giving their private money away. They could start a private charity. If Americans were free, they’d be free of taxation for anything other than security and infrastructure. If Americans were free, their borders would be protected from invasion.

    Are you saying Americans aren’t and shouldn’t be free? Free of your beliefs and ideas of collectivism and redistribution based on your criteria?

    Do you realize that you destroy ambition, incentive and motivation with every single redistributed penny?

    Can America be FREE and COLLECTIVE?

    Why are your “beliefs” always best and forcibly “imposed” on others?

    In your mind, is the Congress a high speed mill for constant, rapid redistribution legislation 24/7/365…we can’t ever get enough of that good old redistribution, huh? More, more, more, more, more, more, more….!!!! Free stuff forever.

    “For the good of the country.”

    To be sure.

  19. John Oliver, With liberals, when you say “personal responsibility” and “accountability” they think you’re speaking in tongues.

  20. John,
    Why don’t you just ask Nick because according to him he has the pulse of the Democratic party on the issue of immigration. It might be prudent to actually see what ,if any measures are taken by the Executive branch before we get up in arms.

  21. John Oliver,

    What if our culture mocked humility? …
    It is not possible to mock what one does not understand.

    So don’t worry about it.

    What is being mocked is an illusion.

    The Wrong-wing thinks it is compromise, and so does the Left-wing.

  22. John,
    I’ve always agreed that is the technically correct interpretation.

    I have a lot to learn and one question that I struggle with is; why would anyone EVER trust government to be immune to the failings of human nature?

  23. Steve H.

    … power is being accumulated by Obama …
    “They” say that about every preznit and always say it with their eyes closed.

    It makes “them” feel safe because they can vote him out of wait him or her out.

    (As “they” complain they fantasize that they have the power.)

    But “that power he had” stays around after he goes.

    That power stays so “they” can blame the next one for accumulating it.

    Pretty soon “they” are snoring really loud.

  24. “It is not possible to mock what one does not understand.”

    On the contrary, it would be a very good explanation on why it happens.

  25. Raff, We are in agreement. We should be patient and see what actions our King, err President takes. But, he’s feeling out his fellow Dems. That is w/o question. Too bad he doesn’t communicate directly w/ them like every other President in history has. He has contempt for politicians, including his own party.

  26. “They” say that about every preznit and always say it with their eyes closed.

    It makes “them” feel safe because they can vote him out of wait him or her out.

    (As “they” complain they fantasize that they have the power.)

    But “that power he had” stays around after he goes.

    That power stays so “they” can blame the next one for accumulating it.

    Pretty soon “they” are snoring really loud.”

  27. thght this was interesting re executive powers of preFor example, Congress can grant the President (or his Attorney General) the authority to deport certain illegal aliens, but it cannot attempt to retain a veto over the final decision as it tried to do in the Immigration and Nationality Act.24

    In sum, a President has broad discretion to use written directives when he is lawfully exercising one of his constitutional or statutorily delegated powers. Any broad power or discretion can be abused, but it would be wrong to confuse such potential or real abuse with the many legitimate uses.
    z: “…

    Re Dredd they say that about every president, power being accumulated. 02/27/06 “ICH” — — America is headed for a soft dictatorship by the end of Bush’s second term. Whether any American has civil rights will be decided by the discretionary power of federal officials. The public in general will tolerate the soft dictatorship as its discretionary powers will mainly be felt by those few who challenge it.
    I don’t know this site but first one I found when changed name from Obama to Bush

  28. So, if Congress stages a defacto sit-down strike and refuses to do anything, the President must just go along with it, regardless of resulting damage to the country?

  29. “So, if Congress stages a defacto sit-down strike and refuses to do anything, the President must just go along with it, regardless of resulting damage to the country?”

    Jay S,
    He can hold his breath, not eat his vegetables, not let them play with his toys, wet his pants and bawl his eyeballs out. As frustrating as Congress might be to him, he is obligated to work with them. He can use his bully pulpit and try to convince the American people to motivate Congress but, if he chooses to do that early (instead of working with Congress) and often, then he runs the risk of appearing to be a whining, spoiled child.

    Damage to the country? Are you talking about the damage being done by NOT enforcing the laws already on the books or damage being done because no law exists?

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