When Republicans challenged Obamacare in the courts, they sought to overcome the hurdle of persuading the U.S. Supreme Court to overturn a program passed by Congress and enacted by a president. The legal challenge by Texas and 25 other states to the Obama administration’s executive actions on immigration is different. Congress never passed a Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, to grant legal status to some 5 million immigrants. President Barack Obama himself never signed what his aides call an “executive action”; Department of Homeland Security Secretary Jeh Johnson takes that honor. Thus, DAPA is a scary power grab that claims that the president — and even his bureaucrats — have the power to override duly enacted federal law. Federal Judge Andrew S. Hanen of Brownsville, Texas, was right to issue a temporary injunction against it.
The president does not have the right to overturn laws he does not like. The former constitutional law professor knew that in 2010. When asked why he had not pushed through a bill to legalize the presence of immigrants who came here illegally, Obama told Univision: “I am president; I am not king. I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.”
On November 20, when Obama announced the expansion of DAPA to include undocumented adults, he said, “To those members of Congress who question my authority to make our immigration system work better or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill.”
George Washington University law professor Jonathan Turley is an Obama voter who is appalled. Testifying before the Senate Judiciary Committee, Turley charged that partisan “division is no license to go it alone as the president has suggested. You have only two choices in our system when facing political adversaries: You can either seek to convince them or to replace them. This is obviously frustrating for presidents (and their supporters) who want to see real changes and to transcend gridlock. However, there is nothing noble in circumventing the Constitution. The claim of any one person that they can get the job done unilaterally is the very siren’s call that our Framers warned us to resist.”
The Constitution charges the president to “take Care that the Laws be faithfully executed”; Obamaland contends that it is simply engaging in executive discretion. But Judge Hanen countered, “Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits” — such as Social Security cards, work permits, and the ability to travel.
In supporting the president’s imperious go-it-alone approach, Democratic leaders have acquiesced to what Turley calls “their own institutional obsolescence.” They’ve handed a tool of mischief to the next chief executive.
House Speaker John Boehner has a chance to be relevant by pushing a bill that would grant legal status to immigrants brought here illegally as minors. Such a bill also would continue funding for the Department of Homeland Security before a February 27 budget deadline. The Senate and White House would bristle about a package less generous than the big bill passed by a Democratic Senate in 2013, but if enacted, such a measure would be the law of the land until and unless a new Congress and president overrode it. Unless, that is, Americans decide the Constitution doesn’t mean anything.
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