Bypassing Congress? The Executive Order and Immigration Reform

It may come as a surprise to many, but executive orders are almost as old as the Constitution itself. While executive orders are not explicitly mentioned in the Constitution, many presidents, including George Washington, have used them. President Franklin Roosevelt authored the most, with 3,522 over the course of his four terms as president. President Obama, by comparison, has written relatively few—only 168 from the beginning of his presidency until January 2014. While many presidents chose to use executive orders, the numbers vary dramatically.

Original graph here.

The use of executive orders—while not without precedent—has always been controversial. One of the most famous executive orders occurred during the Civil War when President Lincoln suspended the writ of habeus corpus, making it easier for the government to detain prisoners without bringing them before the court. While many argued that detaining enemies of the Union would be vital to the war’s success, his decision to take away a constitutional right was divisive. President Lincoln invited controversy again when he issued the Emancipation Proclamation as an executive order. Although the end of slavery was essential for America’s progression and growth as a nation, President Lincoln’s action to move on such a hot-button issue without Congress writing the actual legislation was bold—and some would say unconstitutional.

Unfortunately for more conservative scholars of the Constitution, the Supreme Court has struck down only two executive orders—ever. The first was in 1952, when President Truman attempted to bring steel mills under federal control so that strikes would not impact the Korean War. The second was in 1995, after President Clinton issued an executive order forbidding the federal government from contracting with companies who hire workers to break strikes. In both of these instances, the Supreme Court ruled that the presidents were attempting to write law rather than clarify or extend an existing law.

Controversy surrounding an executive order has boiled up again regarding President Obama’s recent actions last month to stay the deportations of millions of illegal immigrants. In 2012, citing Congress’ inaction on immigration reform, President Obama announced the creation of the Deferred Action for Childhood Arrivals (DACA) program. This program attempts to make it easier for young adults brought here illegally as children to become American citizens. While President Obama’s recent attempt this November to extend the DACA program through another executive action is controversial, it is not without some precedent—of sorts.

During the 1980s, both President Reagan and President George H. W. Bush issued executive orders granting scores of illegal immigrants temporary work visas. Wait—amnesty?  From Republican presidents? Yep—it happened. The last large immigration overhaul, the bipartisan Simpson-Mazzoli Act, was passed in 1986 while Ronald Regan was President. The law essentially had two parts: first, illegal immigrants who had been in the United States continuously since 1982 were awarded temporary work visas as long as they paid a fine; second, funding was provided for enhanced border security to prevent additional immigrants from crossing the border illegally.

Soon after the new law passed, however, issues began to arise. Although funding was provided to secure the border, it wasn’t nearly enough to stop an increasing flow of immigrants. Additionally, certain groups of immigrants weren’t covered by the “amnesty” part of the law—for example, recently married couples where one spouse was covered by the new law while the other wasn’t. As a result of these oversights, both Reagan and Bush issued executive orders that tried to fill in the gaps appearing in the Simpson-Mazzoli Act. Thus, their actions were not independent of Congress, but rather an attempt to further clarify an act of Congress.

So while Bush and Reagan both used executive orders to grant amnesty to certain illegal immigrants, President Obama’s executive action is a different case. Bush and Reagan were acting within their executive right to clarify an act of Congress. The distinction here is that the actual legislation was written by Congress, not by the presidents. So even though the current Congress refuses to act on immigration reform, President Obama doesn’t have the legal authority to go it alone.

In the end, the Constitution only grants legislative power to Congress, and for good reason. Whether or not President Obama’s plan for immigration reform is good policy doesn’t matter. His executive action will be too one-sided. When legislation begins in Congress, no matter how grid-locked and slow-moving the process may be, that legislation is bound to come out influenced, at least a little bit, by both sides. And we need both sides in order to make good policy— and besides, politics could always use a little more moderation.