Ten Arguments against Obama's Executive Action

Understanding why pending executive action by President Obama on immigration, residency, and citizenship are objectionable, imprudent, and unconstitutional – and what can be done legally and politically about them, if he proceeds – requires a snapshot of history and law.  Ten arguments stand between the president and such bold, unilateral actions.

First, executive directives of all kinds – and some have been creative – started with George Washington.  They are theoretically justified by the indeterminate “executive powers” vested in each commander in chief by Article II of the U.S. Constitution.  Their legal justification begins and ends there, and is necessarily nested in a larger constitutional text and intent, which has always favored avoiding unilateral executive actions unless absolutely necessary (as for national security).  Thus, unless ceremonial or peripheral, the justification for directing agencies one way or another has been to clarify a law – never to create one. 

So, here is the rub.  Since the over-assertion of executive powers by Franklin D. Roosevelt (FDR), the U.S. Supreme Court and federal appellate courts have ruled unconstitutional any Executive Order (EO) that seeks to usurp or effectively legislate where Congress has spoken or reserves the right to speak. 

Thus, for example, the U.S. Supreme Court overturned five of FDR’s EOs (6199, 6204, 6256, 6284 and 6855) for overreaching.  Similarly, the Court threw out President Truman's EO 10340, in which he attempted to control the country’s steel mills to put down labor strife.  The Court was clear: the EO sought to make law, not clarify it.  Again, an appellate court confidently nixed President Clinton’s EO 12954, which sought to prevent federal contracting with those who hire strike breakers.  In the last case, an obvious conflict with existing law invalidated the EO.

Now we come to today.  The first three arguments against the Obama EO are simple, and should be swiftly confronted in court if he issues broad executive action bestowing new rights on those otherwise not entitled to them under existing law or patently misinterpreting existing law to serve a political end, such as altering the process of citizenship.  In sum, if he (one) obviously exceeds all formerly accepted constitutional authority, (two) seeks to legislate where the law is already clear or is clearly the province of Congress, or (three) intentionally disregards the law, the EO should be legally discarded, or viewed as “void ab initio” – that is, of no credibility or force.

Four: If you issue an EO making permanent residents or citizens out of a significant number (say, five to seven million) illegal, unentitled, or “undocumented” foreigners on U.S. soil, you are instantly obligating federal taxpayers and states to afford these newly minted “Americans” or “newly legal residents” any number of privileges, entitlements, and rights not previously held, above and beyond not being deported.  This plainly costs taxpayers and States money, offering them every reason to appeal the decision and apparent standing to do so. 

Next, there is the prudential side of the ledger.

Argument five: If you issue an EO that instantly grants “stay and work” status to currently illegal aliens, even if they have legal relatives, you instantly soak up part of the job pool from which real Americans are hoping to gain employment.  In effect, you hammering the working-class Americans again.

Six: If you issue this EO, you instantly send an international message – a new and shocking invitation: “We just gave away the citizenship or residency farm – so please line up or flood over and come get yours.”  In effect, such an EO will trigger multiple future waves of illegal migration for economic purposes by new and unconnected illegal aliens who see that our laws are not being honored, and so they will come for free entry, too – if not at once, then soon enough.

Seven: For every justification based on an illegal alien having a legal U.S. relative, we can now expect that the same argument will be made by the five to seven million newly minted “instant citizens” or “instant legal residents.”  In short, one thing all members of humanity – those legal and illegal – have in common is relatives.  Once all those here illegally with relatives make their relatives legal, the newly legal (and formerly illegal) relatives will now declare that they, wonder of wonder, also have relatives – that deserve to be legal.  Ad infinitum.

Eight: Status without assimilation is irrelevant, counterproductive, and historically illegal.  Legal status is traditionally achieved by processes of extended learning, intentional assimilation, and legal naturalization – all at a pace set by national need and absorption capacity.  Without understanding the American history, language, laws, values, civic duties, and social expectations, and what it takes to live (and what the nation expects of those living) lawfully, a resident made instantly legal is not American.  Absent the process that Congress has considered necessary for assimilation, we would become no more than a big holding pen, a mismatched conglomerate of humanity, with nothing in common but place. 

That is not America, never has been, and cannot be.  To be American takes an aspiration, and a commitment.  It takes time, effort, and lawful process, as well as social integration.  A president can no more declare an unprepared member of humanity American than he can declare red blue or vice versa.  Assimilation means following a long and winding legal, social, economic and legitimate process.  It takes time; that is the whole point.

Nine: Just as adopting a child into a home affects other family members, instantly making “legal residents” or “citizens” out of five or seven million people – many of whom snuck into the country unlawfully – would have profound effects on the rest of the country.  It cheapens the brand we call American; it undermines the values and processes in which we take pride.  It slights and diminishes the struggle of those who have strived long and hard to become naturalized citizens, or permanent residents, many of whom are also from these same countries.  It says that laws under which we live are of less value, and can be unilaterally upended by one man.  It reduces respect for all those who have come to our shores legally, and who take pride in being legally American.  This is no small matter.  We are, collectively, only what we say we are and live up to – when we cheapen the definition of American, we cheapen it for everyone.

Finally: We are a nation and people of laws, not of whimsy or capricious acts by self-adulating leaders, not subject to any dictator or the assumption of power by this or that president.  These lines are well-drawn.  The U.S. Supreme Court long ago made the point.  We are not ruled by executive order, never have been, legally and prudentially cannot be, and should not now be.  For any president to believe that he has the power to step upon all these legal and prudential considerations, because he has a pen and a phone, indifference to rule of law, or illusions of unilateral authority is simply misguided. 

Nevertheless, if the dark day comes when unilateral authority is asserted in these new and sweeping ways by a president, the answer is clear.  Instant moves to court for actions to stay and then reverse these executive orders would be fitting.  Preparations should be made for interlocutory appeals, specific relief by states and others with standing, preliminary and permanent injunctions, and defense of individual and collective rights across the country in federal courts. 

On the political front, Democrats and Republicans who respect our Republic’s history and can see into the future should prepare to garner and act upon legislation that can be passed swiftly with a supermajority, making void the presumptive executive orders, and Americans should speak – as they did once already in November – with one voice, saying we are ruled not by one man, but by ourselves through Congress.  That is the text, design, history, and enduring intent of our Constitution.  If there can be disagreements about other things, there can be no disagreement about that.

Robert B. Charles is a former assistant secretary of state under Colin Powell, former counsel to a congressional oversight committee, a former litigator, and a teacher of government oversight at Harvard’s extension school.  He is currently a consultant in Washington, D.C.