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.

Is Congress Productive?

Polling indicates that most Americans don’t think so…A poll published on August 3, 2014 by NBC News/Wall Street Journal/Marist College found that 74%, nearly three-fourths of voters, think that Congress has been somewhat or very unproductive this year. Basically—Americans don’t think Congress does anything. So how do we define productivity as it relates to Congress?

At a fundraiser on August 6^th President Obama said, "This has become the least productive Congress in modern history…And that's by objective measures, just basic activity." So how would President Obama determine whether or not Congress was productive? One definition of productivity is “the effectiveness of productive effort, especially in industry, as measured in terms of the rate of output per unit of input”. Essentially, in legislative terms, how many laws has Congress passed? In a divided Congress, where Republicans in the House block legislation from the Democratic Senate and vice versa, it is difficult for the parties to compromise and find a version of a bill both houses can pass. So can we simply look at the sheer number of bills passed per session as an accurate measure?

If we calculate productivity by volume of legislation, then yes, the 113^th session of Congress has been particularly unproductive, even by historical standards. Total volume of legislation tends to decrease when Republicans and Democrats both control a house of Congress, but the current divided Congress is particularly gridlocked.

Graph from The Fix by Chris Cillizza

What does the Constitution say?

In Article 8 of the Constitution, the duties of Congress are outlined. These myriad responsibilities include: the power to collect taxes, pay off debts, provide for the common Defence and general Welfare of the United States, borrow money, regulate commerce with foreign nations, establish immigration guidelines, coin money, punish counterfeiters, establish post offices and roads, promote the progress of science and the useful arts, provide patents, punish crimes committed at sea, declare war, raise and support armies, maintain a navy, make rules for the governing of army and naval forces and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States”.

That is a pretty comprehensive list of congressional duties. And making laws is just one of them. To be sure, fulfilling many of these duties requires writing legislation, but is Congress required to make new laws?

How do members of Congress use their time?

In fact, most members of Congress spend their time visiting with constituents and raising money for their next election. A PowerPoint presentation given to new congressmen by the Democratic Congressional Campaign Committee (DCCC) outlines an example daily schedule. First, 4 hours of call time, 1-2 hours of constituent visits, 2 hours of committee meetings, 1 hour of strategic outreach and 1 hour of “recharge time”. This makes for a 10 hour day. New legislation is not necessarily being written during any of this time. Especially for member of the House of Representatives who are up for reelection every two years, the time spent calling may not be an exaggeration. In fact, former Representative Tom Perriello (D-Va.) said that four hours to make fundraising phone calls could be “low-balling the figure so as not to scare the new Members too much.”

Slide from a PowerPoint presentation given by the DCCC to incoming members of Congress.

If members of Congress spend four hours per day raising money for the next election, would voters find that time “productive”? Are fundraising events more productive than establishing immigration guidelines or raising and supporting armies? Doubtful. Although Congress doesn’t necessarily need to pass more laws every year to seem productive, Congress does need to act on issues that matter to voters. The idea of immigration reform, for example, has been tossed around for years, but nothing has been done. But in order for voters to view Congress as productive, decisive action needs to be taken on important issues. Unfortunately, expecting a Democratic Senate and a Republican House to compromise on important issues may just be asking too much.

Life is a {Structurally Deficient} Highway: Replenishing the Highway Trust Fund

Photo by Randy Heinitz. License here.

On July 15, 2014, Congress passed an emergency funding measure for the Highway Trust Fund (HTF), ensuring that current summer construction projects can continue past the August deadline. This short-term solution will sustain the HTF for now, but Congress and the White House will need to work together to pass more secure legislation. The condition of our nation’s highways is declining rapidly, and the timely upkeep of our roads is extremely important for our safety and economic security.

Why should we care about the HTF? The HTF was created in 1956 as a way to federally finance the growing system of interstate highways. While state and local governments are responsible for roads within their municipal boundaries, interstate highways pass through several state borders. The HTF was designed to provide funding for these multi-state roadways. The HTF is mostly funded by gasoline taxes, but the gasoline tax has not been raised since the 1990s. As vehicles become more efficient, gasoline tax revenues will continue to decrease precipitously.

A report by the American Society of Civil Engineers states: “The Congressional Budget Office sees the crisis worsening when considering newly proposed fuel economy standards that will lower fuel tax revenues by an additional 21% by 2040. Such a decrease would result in a $57 billion drop in the Highway Trust Fund between 2012 and 2022.” If funding for the HTF continues to be sustained by the gasoline tax, the tax needs to be raised to reflect improving fuel efficiency.

Why is Congress involved with highway maintenance? In Article I, Section 8 of the Constitution, it says: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”. Congress has the power to tax, in part to create and maintain the country’s infrastructure including roads, bridges, dams, public transportation, energy, levees, drinking water, railroads, ports and waste management. These public goods are necessary for our communities to thrive and grow.

Public goods are unique in economics because their value cannot be calculated by the cost of implementation. Instead, public goods have value because of what would happen if they were not in place. For example, a system for cleaning drinking water is valuable because of the diseases we avoid by investing in good water filtration. If the elements of our infrastructure are not maintained appropriately, society suffers. The Constitution states that Congress has a duty to protect the “general Welfare of the United States” and that includes the maintenance of interstate roads. Poor interstate roads can negatively affect commerce among states. If goods cannot be shipped safely or quickly between states, the national economy will deflate.

Some conservative groups argue that states should be left with control over highway repairs, as they were before the HTF was created. If funding of road repairs was left to the individual states, however, poorer states may not be able to fix their roads, making it difficult or even impossible to bring goods into those states. Because state economies are so different, the federal government needs to even out the disparities and ensure that each state has the same opportunity to participate in the national economy.

Are our roads really that bad? Short answer: yes! The American Society of Civil Engineers (ASCE) produces an annual report card for America’s infrastructure. In ASCE’s 2013 report, America’s roads are given a D grade, meaning our roads are at risk. Specifically, a D grade means “the infrastructure is in poor to fair condition and mostly below standard, with many elements approaching the end of their service life.” The report goes on to state that 32% of American roadways are structurally deficient, which costs U.S. motorists “$67 billion a year, or $324 per motorist, in additional repairs and operating costs”.  Data about the safety of our bridges isn’t much better: one in nine American bridges were considered structurally deficient in 2012. In five states, at least 20% of bridges are in poor condition; while in the nation’s capitol, a whopping 77% of bridges are considered either structurally deficient or functionally obsolete.

While the latest bill will sustain the HTF short-term, our highways still need help. Ideas for a long-term solution for funding highway maintenance, like raising the gasoline tax, are necessary—not just for our safety on the road, but for our national economy too. Congress, let’s make sure we can still get our kicks on Route 66 by securing a bright future for the Highway Trust Fund!

Explore ASCE’s latest Infrastructure Report Card here.

Impeachment: What does a president have to do?

On Tuesday, July 8, 2014, Sarah Palin wrote an op-ed where she called for President Obama’s impeachment. Palin stated that the “unsecured border crisis” is the last straw “that makes the battered wife say ‘no mas’”. She is not the only conservative who has called for Obama’s impeachment. This political threat is a fairly common one. Democrats repeatedly called for President George W. Bush to be impeached when “weapons of mass destruction” were not found in Iraq.

But what does a president actually have to do to be impeached? In Article II, Section 4 of the Constitution, the standards of impeachment are outlined simply:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Constitution only outlines two specific crimes for which impeachment would be appropriate: treason and bribery. Other than those two, the door is left fairly wide open. The phrase “high Crimes and Misdemeanors” is a holdover from British laws of impeachment, where leaders could be impeached for criminal or noncriminal activity that proved the president was abandoning his duty. Essentially, impeachment is reserved for the most serious cases of neglect. In fact, Congress has only seriously discussed impeachment four times.

I.               President Andrew Johnson was actually impeached by Congress because many representatives were dissatisfied with how he was handling the country after Lincoln’s assassination. Radical conservatives in the House accused him of violating the Tenure of Office Act by dismissing the Secretary of War, Edwin Staunton. Johnson was tried by the Senate, but he was finally acquitted by one vote.

II.             After President Harrison’s death, John Tyler gained the presidency and insisted on full executive powers. He vetoed several laws establishing a national bank on the grounds of state’s rights. As a result, Whigs in the House introduced a resolution of impeachment, but the resolution failed.

III.           President Richard Nixon was first elected in 1968. He won his reelection campaign in 1972, but soon afterwards, allegations surfaced that officials from his reelection campaign had participated in a break-in at the Democratic National Offices in the Watergate Hotel. This episode became known as the Watergate scandal. Congress began debating his impeachment, but Nixon resigned before he could be formally impeached.

IV.           After his reelection in 1996, Bill Clinton became the second president to be impeached by the House of Representatives as a result of an inappropriate relationship with a female intern. He was tried in the Senate and found not guilty. He apologized to the nation for his actions and was able to finish his second term.

Throughout our country’s history, the House of Representatives has only successfully filed for impeachment twice. In both of those instances, the Senate trial has found both of those presidents not guilty. This congressional power has not been used often and with good reason. In order for a president (or another executive officer) to be impeached, the measure would require majority support in both the House of Representatives and the Senate. When impeachment is used as a political threat, there usually isn’t enough consensus among politicians to go through with a successful impeachment trial.

Regarding Sarah Palin’s recent call for President Obama’s impeachment, most congressional conservatives are not on board. Senator John McCain—who is essentially responsible for Palin’s status as a politico after tapping her as his running mate in 2008—said that while he “respects” Palin’s views, her comments could actually hurt Republicans’ chances for winning Senate seats this fall. John Boehner also spoke out against impeachment, even after he filed a lawsuit against Obama. Besides lacking support among Republicans in Congress, Palin’s aggressive tactic would most likely fail because Democrats currently hold the majority in the Senate. Even if Republicans in the House managed to issue a resolution of impeachment, the Senate would certainly acquit President Obama.

In a nutshell, impeachment will never be successful if the arguments against a president fall along strict party lines. If the reasons for impeachment are political, and not the result of criminal neglect as established in the Constitution, it will never happen. Instead of talking impeachment, let’s start researching Senate candidates for the upcoming election—and make a serious political impact.