{Another chapter is about to be written in one of the oldest debates in American politics: How much power and authority can a president wield without the cooperation of Congress?}
President Barack Obama is expected to announce an immigration plan as early as next week that sidesteps Congress and offers safe harbor from deportation to millions of illegal immigrants. Underlying Mr. Obama’s overhaul plan is the legal rationale that the president can use the executive authority of the office to make policy as long as its within his constitutional or statutory authority.
Specifically, administration officials cite the power of prosecutorial discretion. The administration, the theory goes, doesn’t have the resources to deport the more than 11 million people in the country illegally, and therefore it is within the administration’s right to set enforcement priorities and decide who should be allowed to stay.
Critics, including many top Republicans on Capitol Hill, say that the plan goes far beyond Mr. Obama’s legal authority and essentially amounts to policy making without the consent of Congress.
“President Obama is planning a wholesale nullification of federal immigration law. Voters sent Congress a Republican majority to protect them—and their borders—from the President’s unlawful executive amnesty,” said Sen. Jeff Sessions (R., Ala.). Mr. Sessions, the incoming Budget Committee chairman, called for Congress to use its funding authority to stop the Obama administration’s plans.
The debate over the scope of the president’s power dates back to some of the nation’s earliest policy arguments.
Harvard law professor and former Reagan administration Solicitor General Charles Fried pointed to the early debates between Presidents Thomas Jefferson and John Adams. While he was president, Adams faced criticism from Jefferson and his supporters about his use of executive power, but when Jefferson came into office, he expanded the power of the executive.
“Jefferson came in and what did he do? The Louisiana Purchase. Exactly the same kind of thing was said about that,” said Mr. Fried, adding: “It just goes on and on like this.”
At first, executive actions by the president were informal, written directives. They developed into a formidable policy tool in the early 20th century. Some of those orders are numbered and are published in the Federal Register, while others executive actions are issued by cabinet secretaries or as orders to the military.
Abraham Lincoln’s Emancipation Proclamation was a unilateral executive action. President Franklin D. Roosevelt issued thousands of executive orders during the height of his New Deal reform program — including a order that rolled back the gold standard and another that authorized the internment of Japanese-American citizens. Other presidents used the orders to establish pet programs, end racial or gender discrimination or advance major social policy objectives.
President Harry Truman used his executive authority to seize steel mills in the midst of a labor dispute. The Supreme Court later ruled that he lacked that power, even during war time.
Mr. Truman also used his executive authority to desegregate the military — a highly controversial social policy at the time.
President John Kennedy used his pen and his executive authority to set up the Peace Corps.
The Obama administration has wholeheartedly embraced the history of presidential action to make the case that its forthcoming rules are well within the law.
Attorney General Eric Holder said Thursday that he was “confident that what the president will do will be consistent with our laws.”
He pointed to Theodore Roosevelt’s executive actions — much of which involved establishing national parks and nature preserves, as well as giving preference to veterans in hiring–as an example of a robust use of presidential power.
“You want to look at the history of executive action, you know, Teddy Roosevelt, I think, used executive action over a thousand times,” said Mr. Holder. “I’m sure within that 1,000, there’d be things that I would disagree with. There’s an awful lot that he did I think that was good. I’m not sure that any of the things that that president did or others have done I would consider necessarily unlawful.”
Wall Street Journal
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