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The Constraints of Executive Action on Display in Immigration Fix

John Hudak

Today, President Obama announced executive actions in an effort to provide targeted fixes to a broken immigration system. The president noted that despite the existence of majority support in Congress to pass immigration reform, the legislation will not advance, as the Speaker told him the House GOP would continue to block it.

In response to such obstruction and given the public support for changes to the immigration system, the president announced that he would proceed with executive action. The unique and important point, however, is that the president’s speech highlighted presidential power, its limits, and the processes by which executive actions come to be.

First, the president announced that he would transfer some $2 billion dollars already appropriated within the immigration enforcement system away from the nation’s interior and toward the border to deal with a new humanitarian crisis. The president focused clearly on the new influx of youth from Latin America. Such a transfer of funds, though not an unlimited presidential power, is broadly acceptable, typically so long as the funds are transferred within the same program and there are no explicit Congressional prohibitions against such use. By all accounts, this funding transfer meets those requirements.

Second, the president has clear policy preferences over what a new immigration system would look like. Today’s speech makes it clear he does not have the authority to simply institute such a program. The president stated, “Today, I’m beginning a new effort to fix as much of our immigration system as I can…on my own…without Congress.” This line illustrates clearly, through the use of the term “as much,” that the president realizes the limits of unilateral action. Otherwise, the president would simply sign an executive order—one that would be broadly unconstitutional—that simply directs federal agencies to implement Democratic proposals for comprehensive immigration reform. This speech showed that such legal and constitutional constraints inform presidential action.

Third, the president showed a glimpse into the process surrounding executive action. Simplistic criticism often paints a picture of a power-hungry president sitting mischievously behind a desk in the Oval Office dreaming up new ways to overreach his authority, flippantly drawing up executive orders that do so. In reality, the president and a team of attorneys throughout the federal government study legislation, constitutional law, and other legal precedent to understand the limits of presidential power in a given policy area or with regard to a specific set of laws. The president explained, “I’ve also directed Secretary Johnson and Attorney General Holder to identify additional actions my administration can take on our own, within my existing legal authorities, to do what Congress refuses to do and to fix as much of our immigration system as we can.”

Such an effort will involve White House lawyers, the DOJ’s Office of Legal Counsel, the Office of the Attorney General, lawyers within the Homeland Security Department (broadly) and immigration-related agencies (specifically), and others. Understanding, researching, crafting, and ultimately issuing executive actions is a detailed, multi-person, complex legal process by which presidents get substantial information about the limits of their own authority and the bases on which they can act. The president illustrated in this request to DOJ and DHS that executive action is one of contemplation, not one of spontaneity. The lawyers who deal with these issues are not appointed “yes-men;” many are career civil servants who are offering technical, non-partisan advice based on the best available research and precedent. These government lawyers serve a critical, if often underappreciated role: they keep the president in check.

Over the coming months, the president will certainly take executive actions, whether by executive order, regulation, and/or other administrative directive, to change the way the immigration system is administered. The president will not get the immigration system he wants. At best, he will get one that he considers slightly less broken. Because, he noted in his speech, “I don’t prefer taking administrative action. I’d rather see permanent fixes to the issue we face…I would love nothing more than bipartisan legislation to pass the House, the Senate, and land on my desk, so I can sign it.” The best and broadest solution is legislation, and in the meantime, the president will figure out what small changes the law will let him implement on his own.

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