Obama’s executive order shows potential weaknesses in law

 

This past November, President Obama enacted an executive order to reform current immigration policy.  Many questioned the legality of his action and claimed that the president overextended his executive powers.  Now, the executive action remains on hold with the issuance of an injunction by Judge Andrew Hanen in the US District Court in Brownsville, Texas.

Until a judicial ruling, however, the question remains: Did Obama overstep his executive powers in issuing this action expanding the Deferred Action for Childhood Arrivals (DACA) and establishing the Deferred Action for Parents of Americans (DAPA)?

At the Notre Dame Law School on Thursday, March 5, the Federalist Society hosted a talk by Michael Scaperlanda, Professor of Law at the University of Oklahoma School of Law, entitled, “Executive Overreach: The Obama Administration and Immigration Reform.”

Scaperlanda claimed that his fellow immigration law professors from across the nation unanimously agree with him that some form of comprehensive immigration reform is required, but asserted that he is one of only two out of 140 immigration professors who believe that Obama acted outside of the powers of the executive, basing his belief on historical precedents and judicial rulings.

In 1986, Congress passed the Immigration Control and Reform Act, granting amnesty to three and a half million illegal immigrants out of the four million undocumented peoples living in the United States.  According to Scaperlanda, “this bill was passed on the one condition that the country would never face this issue again … clos[ing] the back door in order to open a flourishing front door [for immigration].”

The country today faces a vast dilemma with between 11 and 12 million undocumented immigrants living in America.  Scaperlanda cited four issues that enabled immigration to grow into such a large problem: the failure and ineffectiveness of employee sanctions, failure of governmental fines to thoroughly punish companies hiring illegals, the inability of the government to create a comprehensive reform of immigration, and inadequate enforcement of immigration laws, a problem that has plagued both Republican and Democratic administrations.

On November 20, 2014, Obama delivered a speech announcing his executive actions on immigration reforms highlighting border control, deportation of felons, and requirements regarding background checks and tax payments.  The Department of Homeland Security immediately issued “guidelines” for implementation.

Proponents of Obama’s executive action claim that this reform seeks to provide humanitarian relief in the form of immigration law in the context of prosecutorial discretion.  Those in favor argue that “what Obama has done is nothing different than the acts of previous presidents in granting work authorization as humanitarian aid,” Scaperlanda said.

However, Scaperlanda claimed that Obama’s action is significantly different from the actions of previous executives.  He cited 31 instances of previous executive action in which the president acted on behalf of immigrants as humanitarian aid, and explained how each case differed from the action taken by Obama.

According to Scaperlanda, 10 of these instances were given under the power of parole, a congressionally sanctioned power expressly delegated to the president, and 27 instances responded to specific crises.  Two instances dealt with immigrants seeking visas during the Carter and Clinton administrations: in the case of Clinton to grant visas to women who were involved in legal situations with an abusive spouse, and in the case of Carter because of legal problems arising from the State Department’s miscalculation of the immigration numbers cap.  Two more instances dealt with decisions made by the Reagan and Bush administrations to prevent separation of families.

Scaperlanda pointed to history and judicial precedent to explain why Obama’s action is different from those of previous presidents.  In 1952 the Supreme Court’s ruling in the case Youngstown Sheet & Tube Co. v. Sawyer limited the president’s power in instances of private property seizure, ruling that no such power was enumerated in the Constitution.

In his concurring opinion on the case, regarding the executive’s relationship to Congress, Justice Robert Jackson concluded that there were three zones describing presidential authority through Congress.  The first occurs when the president and Congress work together, in which case, according to Scaperlanda, “the president’s power is at its zenith.”  The second takes place when Congress is silent and the president acts on his own authority.

The third, and most applicable to Obama’s actions on immigration, occurs when the president works against the will of Congress, and his power is at its weakest.  Supporters of Obama’s executive order argue that Congress cannot agree on the issue of immigration, and therefore this analysis does not apply.  However, Scaperlanda asserted that Congress already made its decision in 1986 following the passing of the Immigration Control and Reform Act.

Scaperlanda further distinguished Obama’s actions from those of Reagan and Bush, who both sought to extend citizen’s benefits to spouses and children of those illegal aliens who possessed amnesty.

Obama’s executive action authorizing DAPA maintains that the children of illegal immigrants are the anchors for their parents’ path to citizenship.  However, Scaperlanda observed, children do not possess the ability to immigrate their parents, and current immigration law stipulates a 21 year waiting period for the immigration of parents.  As such, there can be no immediate pathway to citizenship for parents of children possessing amnesty.

Whether Obama’s action represents a clear example of executive overreach is up to the courts to decide.

John Kill is a political science and economics intent in the First Year of Studies who enjoys playing soccer, following politics, and listening to anything by Tom Delonge.  One day, he will be the President of the United States.  Contact John at jkill@nd.edu.