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.

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. 

Does Rep. Eric Cantor’s loss mean that compromise is dead?

Cooperation is bad for reelection.

On June 10, Rep. Eric Cantor of Virginia, the House Majority Leader (the second-highest ranking Republican in the House of Representatives) lost the Republican primary in his district. He lost to David Brat, an Economics professor, who ran an impressive campaign. I had never heard of him, so I decided to look at his website. In one section, titled “ Reforming Washington”, it lists the usual reasons for ousting an incumbent representative—they’ve lost touch with their constituents, they’ve become part of the problem, etc. etc.

Image from David Brat's campaign website.

But then he goes for the jugular—“Cantor’s ‘leadership’ has been characterized by capitulation to the Obama agenda”. The top of the page features a picture of President Obama and Rep. Cantor talking, surrounded by people, presumably after a State of the Union or other Capitol event. At what point did talking to the President of the United States, let alone allowing yourself to be photographed doing so, become equal to a betrayal of the worst kind? Seriously? Heaven forbid coworkers should exchange a few words after a long day. Don’t we want our congressmen and women talking to each other? Being friendly? Getting things done? I certainly do.

In the Cantor/Brat campaign “amnesty” for illegal immigrants became the dirty word. David Brat claimed that Cantor was the biggest Republican supporter of amnesty. This assertion was a reaction to an interview Cantor gave where he said: “I have told the president, there are some things we can work on together…We can work on the border security bill together, we can work on something like the kids. So far, the president has just insisted that it’s all or nothing — my way or the highway. That’s not going to happen.”

Fundamentally, Cantor rejected most of President Obama’s plans for immigration reform. In terms of policy, Cantor stayed within the conservative camp. Instead of attacking Cantor’s policies, Brat was actually villainizing Cantor’s willingness to even consider cooperating with Democrats on immigration. That was Cantor’s “weakness”. Unfortunately, Brat isn’t alone in using this campaign tactic. Republican challengers across the country, for example, have accused incumbents of being “RINO”s or “Republicans in Name Only”, implying that these politicians have abandoned conservative ideals and started working with Democrats.

What is with this compromise-shaming tactic during election campaigns? It needs to stop. Our whole system of government is built on compromise. The Constitution itself reinforces the need for coalitions and cooperation. Our founding fathers were terrified of factions controlling the government. In the Federalist Essay No. 10, James Madison defines a faction thus: “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” In short, a faction is a group with strong opinions that are adverse to (or opposite) the views and rights of the rest of the population. James Madison argued that factions contribute to distrust in public institutions and are a danger to personal liberty.

Madison goes on to argue that there are only two ways to control factions: either remove their causes or control their effects. Removing the causes of factions would be impossible because we can neither deny freedom of thought or opinion nor force citizens to share the same ideas. We are left with only one solution—controlling the effects of factions in government through checks and balances.

The whole reason checks and balances exist between branches of the federal government, and even within the branches themselves, is to prevent one faction from controlling the whole process of legislation. If any big piece of legislation passes, it has to be a result of cooperation between political parties. The Constitution requires Congress to have a majority to pass legislation. Often, even if a party has a majority in House of Representatives, it probably won’t have a majority in the Senate. Each law passed by both houses of Congress then needs to be signed by the President. If one party monopolizes both houses of Congress, a different party may occupy the White House. If an unconstitutional law happens to get through both the legislative and executive branches, the Supreme Court can strike it down. Our Constitution is quite effective at forcing collaboration—and cooperation is necessary in order for the government to work well.

There is a glaring double standard here. As voters, we get mad when a party single-handedly rams legislation through the system without the other party’s support—but then we get mad when our members of Congress compromise with the other party to get things done, as if compromise were a betrayal of principles. Where is the balance? We need our legislators to be friendly with each other. We need them to work together and get things done. Please stop shaming members of Congress every time they dare talk to the person sitting next to them—even if they are from the other political party.