If you follow immigration policy, you know there’s been a lot of back-and-forth debate about whether or not to deport undocumented residents in the U.S. You also probably know there’s been quite a bit of controversy surrounding President Barack Obama’s stance on immigration and the executive orders he’s issued during his tenure.
Back in 2014, President Obama announced his plans to implement policy, via executive orders, to protect undocumented immigrants from deportation. The policy is called the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and not only does it offer temporary protections from deportation, but it also authorizes work permits to about 5 million undocumented immigrants, most of which are parents of U.S. citizens.
The policy is modeled after a previous version, DACA, that offered reprieve to child immigrants, and basically just expanded the qualifying age group. Herein lies the controversy. Texas, along with 25 other states, challenged the constitutionality of Obama’s action, citing a lack of authority to issue such orders, and the case made it all the way to the Supreme Court. However, because SCOTUS is currently down a Justice, the court deadlocked on the decision, leaving millions of undocumented immigrants in legal limbo.
What Exactly Is an Executive Order?
They’re legally binding orders given by a president to federal administrative agencies. Oftentimes, they are used to direct or guide these federal agencies in their execution of laws or policies. Executive orders can declare national emergencies, impose sanctions on other countries, set federal purchasing policies, and dictate working conditions for federal employees, to name a few.
Where Does the President Get His Authority?
Executive orders have the same legal effect of a congressionally established law, but they don’t require congressional approval to take effect. Despite this, a president can only give an executive order if the power is granted via legislative authority, if Congress expressly delegates some form of discretionary power to the president, or if it comes from a power directly granted via the Constitution.
How Long Do They Last?
Once an executive order is signed by a president, it becomes law. An executive order will stay law unless Congress takes legislative action to limit the law surrounding the executive order or is reversed by presidential authority (whether that be the issuing president or a new president).
Let’s not forget, though, that all laws are subject to judicial review and executive orders are no different. Orders can be challenged in court on the grounds that the order deviates from congressional intent or, in the case of Obama’s DAPA policy on illegal immigrants, lack of authority to issue said orders. Absent judicial review, Congress has the option to reform the law and, thus, limit what the executive branch can do with respect to that law.
However, Congress is much less likely to challenge executive orders related to national security, foreign policy, and treaties since those are powers expressly granted to the executive branch via the U.S. Constitution.
So Why the Big Controversy?
Since taking office, President Barack Obama has signed 249 executive orders and received plenty of scrutiny. Many have often criticized President Obama for his constitutional overreach for his use of these executive orders, arguing that he uses them as a way to get around Congress.
This is precisely where the controversy stems because executive orders essentially allow a president to make laws without the consent of Congress. However, it’s long rooted in our history that Congress has given the President leeway in implementing and administering federal laws and programs, especially when it comes to national security and defense. In fact, supporters of Obama’s policy argue the president’s discretion over immigration is deeply interwoven in our law.
President Obama has signed far less executive orders than many former presidents. President Franklin D. Roosevelt signed 3,728 executive orders, which even if you take into consideration he served extra terms the numbers still far outreach Obama. President Woodrow Wilson served the same 2 terms and signed 1,803 executive orders during his tenure. Still, many argue it’s not the quantity that counts, but rather the content of the orders that are contrary to the intent of Congress that matter.
What Happens Next?
Congress can certainly take steps to limit future action, but unless another case is brought before SCOTUS, with a full bench of Justices, we won’t know the full breadth of the power the executive branch has when it comes to issuing executive orders. Until then, the outcome largely depends on which candidate wins the 2016 presidential election. Trump has repeatedly stated he would repeal Obama’s executive orders regarding immigration policy, while Clinton has vowed to maintain similar policies as Obama.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law