On November 20th, 22014, President Obama addressed the nation and announced he was going to sign an executive order that would drastically change the US immigration laws. On November 21, 2014, President Obama signed his executive order in Las Vegas. I plan to use this political activity as my news story because it deals with both substantial legal and ethical issues.
The legal issue deals with the Separation of Powers. The foundation of our system of government is laid out in the U.S. Constitution. In the first three Articles of the Constitution, the founders established 3 separate but equal branches of government. Those articles specifically detail the unique duties and responsibilities of each branch and reserve those duties to that branch exclusively.
Article 1, in 10 sections, establishes the Legislative branch of the U.S. government. It establishes a Congress with a Senate and House of Representatives whose primary responsibility is to make laws. That is, they legislate. They develop debate and pass federal laws. Article 2, in 4 sections, establishes the Executive branch of the U.S. Government. It establishes an office of the President, whose primary responsibility is to execute the laws that Congress passes. Article 3, in 3 sections, establishes the Judicial branch of the U.S. Government. It establishes a Supreme Court, whose primary responsibility is to make sure that any laws passed by the Congress are constitutional, i.e., they do not violate the tenants of the constitution. They also serve as a check on the actions taken by the President, to ensure that he does not exceed his authority as outlined in Article 2. Each branch of government has additional duties and obligations beyond what I’ve mentioned here, but what I have mentioned here is at the heart of the legal issue of this situation.
President Obama contends he has the legal authority to issue his Executive Order on immigration. He bases his authority on what is referred to as ‘prosecutorial discretion”. Essentially he is saying that he has broad discretion in HOW he enforces the laws passed by Congress. For example, prosecuting attorneys have wide discretion in how they enforce the laws. It is their decision, for example, to charge someone with 1st degree murder, instead of 2nd degree murder, or not to bring charges at all. That is their discretion. President Obama is making the argument that he has that type of discretion in how he enforces immigration laws.
His critics, however, say that applying the concept of ‘prosecutorial discretion’ in this case is a broad overreach of executive authority. That concept is designed for individuals on a case by case basis, and should never be used on an entire class of people, like illegal immigrants. They argue that his Executive Order creates an entire new law, which is a function of the Legislative Branch, not the Executive Branch.
So the legal issue here is one of a constitutional order. Did President Obama breach the Separation of Powers as detailed in the first three articles of the U.S. Constitution by signing an executive order that was unconstitutional in its reach? This issue will be resolved in one of two ways. First, one of the two parties directly involved will back down. In this approach, either President Obama will rescind his order or Congress will acquiesce and accept the order as constitutional. Either of these activities will render the question of a breach of the Separation of Powers to be moot.
Second, the Congress or a third party with standing will file a lawsuit to have the Executive Order declared unconstitutional that will ultimately be decided by the Supreme Court. Several states and private organizations have already indicated they will take this approach.
While it is too early to tell how this will ultimately be decided, there is a lot going on that indicates President Obama is on weak ground. First, any time a President is considering any type of action that may be considered borderline legal or constitutional, they request an opinion from the Office of Legal Counsel in the Justice Department. Traditionally their job is to advise the President on whether or not he can take contemplated action or not and to provide a sound legal argument for their opinion.
In this case, the President waited until 2 days before announcing his executive order to even ask the OLC for an opinion. That would indicate to most President Obama didn’t care about a legal opinion on his decision. He was going ahead with it regardless of what the OLC advised. He had decided to advise himself that his action was constitutional.
President Obama announced weeks ago that he would be issuing his Executive Order right after the mid-term elections in early November. If his Executive Order was legal and good for the country, why not do it two or three years ago or certainly before the elections so his Democratic Party would benefit from all the good news? The fact that he waited until after the elections to announce his Executive Order could be construed by critics to acknowledging that President Obama knew his decision would be viewed as a breach of the Separation of Powers and not necessarily good for the country. He didn’t care – he was going to do it regardless.
When President Obama planned to give his address to the nation to explain his Executive Order, he asked only one television network – Univision - to carry his speech. That was very unusual as presidents always ask all networks to cover their addresses to the nation. What is unique about Univision is that it is a Spanish language television station. And the time requested was right in the middle of one of their highest rated shows of the year – The Latin Grammys. This approach would seem to suggest that President Obama was attempting to minimize announcing his Executive Order to most of America and maximize his announcement to the Hispanic community. Critics argue that President Obama knew that many in America would question the legality of his order, while his order would be strongly received in the Hispanic community, who would not question its legality.
The strongest argument that issuing the Executive Order on immigration was unconstitutional, however, comes from President Obama himself. Throughout the first six years of his presidency, the Hispanic Community has been pressuring him to do something to legalize the 11 million illegal immigrants in this country and provide a legal way for them to stay here. On numerous occasions, all on tape and being replayed by his critics, Obama asserts he does not have the constitutional authority to unilaterally make changes to immigration law. He repeatedly affirms it is the responsibility of Congress, not the President, to make law regarding immigration. In a speech on March 28, 2011, for example, President Obama says “That for me to simply through executive order ignore those congressional mandates (existing congressional laws) would not conform with my appropriate role as president.” (Barak Obama, 2014) So for a president who has said repeatedly over six years he does not have the constitutional authority to change immigration law by Executive Order, how does he now expect anyone to believe him when he says Oh, by the way, I have the legal authority to do this.
In my humble opinion, I believe President Obama is attempting to play a game of chicken with the Congressional Republicans and his critics on this matter. Deep down, he knows his Executive Order is unconstitutional. His problem is that he believes his Executive Order is the right thing to do, so he did it and is daring anyone to challenge him on it. He is hoping that the criticism will die down and it will eventually be accepted as if it was constitutional.
President Obama tried this exact approach once before, about two years ago. Unfortunately for him, it did not work out as planned. There were three vacancies on the National Labor Relations Board and he was unable to get his nominees confirmed. He waited until a sitting Congress adjourned for the weekend, declared the Congress in recession, and made recess appointments of his three nominees. The three immediately took seats on the board, participated in hearing cases and began rendering opinions. President Obama had to know that a President cannot declare a Congress in recess. Only the Congress itself could do that. He made the obviously unconstitutional appointments and hoped no one would challenge them. Unfortunately for him, he was challenged and when the case went to the Supreme Court, the Court ruled his actions were unconstitutional and his three recess appointments were forced to step down from the Board.
This is the approach I believe President Obama is trying with his Executive Order. He knows it is unconstitutional. He is gambling, however, that it will not be challenged in court and that in time it will be accepted as if it were constitutional.
The ethical concerns of his Executive Order are less clear cut, but they still exist. In the 2014 November Mid Terms, the President’s party suffered devastating losses. They lost control of the Senate, lost additional control of the House, and lost several Governorships. Some of those were from deep blue states like Maryland and Chicago. It was a clear and total repudiation of President Obama’s policies and his tendency to work around Congress instead of with them.
Right after the elections, President Obama announced at a press conference that he had heard the American people and understood they wanted him to work in a bipartisan fashion with Congress, not around them. He invited the entire congressional leadership to dine with him at the White House and stated he would do his best to work together with the new Republican leadership now that they controlled both houses of Congress. Yet despite this new announced approach, President Obama chose to go around Congress and act on his own at the earliest opportunity. Was the dinner and speeches all a show? Was it just an unethical attempt to fool the American voters into believing he had really heard them? How else do you justify a president saying one thing but then immediately doing just the opposite?
President Obama’s Executive Order will provide legal status for 4 – 5 million illegal immigrants. There are more than twice that many people patiently waiting their turn and going through the established process to immigrate here legally. How do you ethically say to millions of illegal immigrants who broke the law that you are now going to reward their illegal activity? And at the same time, tell millions who are going through a legal process that they will just have to continue to wait?
A third ethical concern is the pressure President Obama puts on finding jobs for current citizens. The national unemployment rate is just over 6%, but unemployment rates for minorities are in double digits. Unemployment rates in many inner city areas are also in double digits. Without legal status, the illegal immigrants typically take the lowest paying jobs like harvesting fruit, construction laborers, landscape laborers, housecleaners, dishwashers, etc. Now, with legal status, they will be able to compete directly against current citizens for better paying jobs. How do you ethically make it harder on your current citizens to find good jobs to support themselves and their families by rewarding people who have broken the law?
The existence and implications of the Executive Order on immigration issued by President Obama will play out over the next year. As I have pointed out, there are a number of both legal and ethical concerns that will surface. How those concerns are addressed will determine the real outcome of the Executive Order.
Works Cited
Rivkin, David, and Elizabeth Price Foley. "Obama's Immigration Enablers." The Wall Street Journal. Dow Jones & Company, 25 Nov. 2014. Web. 25 Nov. 2014. <http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-obamas-immigration-enablers-1416872973?mod=hp_opinion>.
"Barack Obama: Position on Immigration Action through Executive Orders 'hasn't Changed'" @politifact. 25 Nov. 2014. Web. 25 Nov. 2014. <http://www.politifact.com/truth-o-meter/statements/2014/nov/20/barack-obama/barack-obama-position-immigration-action-through-e/>.
Gerson, Michael. "Michael Gerson: Obama's Executive Order Redefines the Immigration Debate." Washington Post. The Washington Post, 24 Nov. 2014. Web. 25 Nov. 2014. <http://www.washingtonpost.com/opinions/michael-gerson-obamas-executive-order-redefines-the-immigration-debate/2014/11/24/c3553da0-7409-11e4-a5b2-e1217af6b33d_story.html>.
Posner, Eric. "Obama's Immigration Order Is a Gift to Future Republican Presidents." New Republic. 23 Nov. 2014. Web. 25 Nov. 2014. <http://www.newrepublic.com/article/120382/obamas-immigration-executive-order-gift-republican-presidents>.
"Executive Actions on Immigration." Homepage. US Citizenship and Immigration Services, 20 Nov. 2014. Web. 25 Nov. 2014. <http://www.uscis.gov/immigrationaction>.
