Last night I watched as President Obama did something which deeply disturbed me. I wasn’t bothered by his suggestion to allow the illegally here parents of American children the right to stay in the country. Nor wanting to allow children born elsewhere and raised here to stay. I support both. The problem is, I don’t agree with HIM making those choices.
He chose to act in opposition to the Congress, which had refused to pass the immigration bill he wanted them to pass. Instead, he decided to pass his own de facto law (temporary though it may be) which does some of what he wanted the Congress to pass.
The catch is, the Executive branch is not supposed to make law. It is not supposed to dictate the laws passed by Congress. The only power the Executive branch has, in the creation of new laws, is related to veto power. Separation of powers was a big deal for a reason.
Some people argue that Presidental prosecutorial discretion applies in the line item choices to not enforce law against certain people. The courts will surely decide that one. I, however, personally feel that since the exact issue was taken up and not passed by the Congress, it will fall under the category of attempting to legislate around (circumvent) a decision by the Congress. That is an attempt to skew the balance of power.
Had the issue not been brought to the Congress already, it might be clear prosecutorial discretion, the fact that the Congress has the bill and has chosen to not act on it removes the likelihood of this option. For example, it could have been done in the first 2 years of his Presidency, before the bill was in the Congress, and during the time in which he had enough support in both houses for it to pass.
He claims that he was forced to action by Congress refusing to pass comprehensive immigration reform. Well, the problem is that Presidents are not given the power to take over the legislative branch of government when they decide it isn’t going fast enough for them. They aren’t given the right to adopt the power of another branch when they disagree with the actions of it. It doesn’t matter how disfunctional the Congress has been, is now, or becomes in the future, the President has no constitutional authority to adopt the power of the Congress to himself. This is prevented by the separation of powers.
Of course, his own statements bring the acts into question even more. Not only do we have to bring into question whether he had any legal authority to do what he did, but we also have the question of foreknowledge and intent. The question being, did we know he was violating the reach of his powers when he did it?
The answer seems to be a resounding, YES. Not just related to the fact that he has repeatedly referred to his past employment as a constitutional law professor (of whom we could assume, holds significant knowledge of the constitution). No, this is more specific than an assumption like that. We know he was aware that his powers were limited because he said as much. Repeatedly.
In 2010, during a Univision interview with Eddie Sotelo, he gave the following response to being asked why there hasn’t been as much effort on immigration reform as on health care laws:
I am president, I am not king. I can’t do these things just by myself. We have a system of government that requires the Congress to work with the Executive Branch to make it happen. I’m committed to making it happen, but I’ve gotta have some partners to do it.
He is clearly stating that he is aware of the requirement to work with Congress on creating laws, and that he cannot ‘do these things just by myself.’
The question is raised again during a Google Hangout which took place in February 2013. Obama was asked what he was going to do until immigration reform was passed to keep people from being deported, and answered:
This is something that I’ve struggled with throughout my presidency. The problem is that, you know, I’m the president of the United States. I’m not the emperor of the United States. My job is to execute laws that are passed, and Congress right now has not changed what I consider to be a broken immigration system.
It should be an obvious that we have a problem when the President considers it a ‘problem’ to not be the Emperor of the United States. Aside from that, he is clearly stating for a second time that he knows his job is to execute laws that are passed, not to create them. He acknowledges Congress as having the role there.
Of course there are some more liberal people who feel the means to an end makes this an OK move, even if it is legally questionable. Let me try to point out a problem that, if for no other reason than selfishness and self-preservation, should make you pause. If you think this is fine to do, how will you feel if a new President of different views took office and decides to:
- Not enforce laws which protect LGBT people from discrimination. In fact, outright states that if you refuse to hire LGBT people that no one will file charges against you. How will you feel?
- Not enforce laws which require minimum wage to be paid. In fact, blatantly says that paying employees less than minimum wage will have no repercussions at all. How will you react?
- Not enforce laws which require companies to comply with the FDA and EPA. In fact, blatantly says that dumping contaminated chemicals in the lake will result in no fines or charges. How will you respond?
- Not enforce laws which …. whatever else they feel like…
They, of course, will point back in time and say “Look there, at what happened in 2014, there is precedent for this being accepted.”
Do you see the problem yet?
You may completely agree with everything that the President wants to see done, but that is different than agreeing with those wants being turned into actions taken by an individual.
Whenever an individual President takes unilateral action, by absorbing more powers unto himself, he has stopped being a President; he is now a King. Or an Emperor.
As Barack Obama already said.