To get around accusations that he bypasses Congress by issuing too many executive orders (195 at last count), Obama slyly resorts to the lesser-known presidential or executive memorandum instead, which has the same force of law as executive orders. In fact, analysis shows that Obama has issued more executive memos, numbering 198, than any U.S. president in history.
Unlike executive orders, executive memoranda are not numbered or indexed and therefore, until recently, difficult to quantify. As a result, executive memos have gone largely unexamined, despite the fact they often are as significant to everyday Americans than executive orders. (See “Obama has issued more executive orders than any U.S. president in history“)
In Obama’s case, some of the most significant actions of his presidency have come not by executive order but by presidential memoranda, notably his two executive memos last November which confer effective amnesty by refusing to deport as many as five million people who are in the U.S. illegally. Those memos are:
- An executive memo that expand a program that protects young immigrants from deportation if they were brought to the U.S. illegally as children. This is set to start taking effect tomorrow.
- An executive memo, to begin on May 19, which extends deportation protections to parents of U.S. citizens and permanent residents who have been in the country illegally for some years.
The problem, as noted by Wikipedia, is there is no constitutional provision or statute that explicitly permits executive actions like executive orders, executive or presidential memoranda, presidential determinations, and presidential notices. Instead, presidents look to the term “executive power” in Article II, Section 1, Clause 1 of the Constitution, which refers to the title of President as the executive, as well as Article II, Section 3, Clause 5’s instruction that the President “take Care that the Laws be faithfully executed,” else he faces impeachment. Most executive orders therefore use these Constitutional reasonings as the authorization allowing for their issuance to be justified as part of the President’s sworn duties and powers as the nation’s chief executive.
All of which means that the legitimacy of executive orders, executive memos, and other executive actions is open to interpretation and dispute.
In the case of Obama’s two executive memoranda conferring effective amnesty on illegal aliens in the United States, their constitutionality is being challenged in the courts, no thanks to the supine members of Congress who actually are charged by the U.S. Constitution to make laws.
Judge Arthur J. Schwab
Last December, federal judge Arthur J. Schwab of the Western District of Pennsylvania, used a deportation decision to probe the constitutionality of Obama’s amnesty memorandum and declared it “unconstitutional.” Judge Schwab wrote:
“President Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, is unconstitutional.”
Judge Schwab’s full decision here.
Judge Andrew Hanen
Yesterday, Feb. 16, 2015, another federal judge, U.S. District Judge Andrew Hanen, took it one important step further by temporarily blocking Obama’s amnesty so as to give a coalition of 26 states time to pursue a lawsuit that aims to permanently stop the orders. (My Way News)
Judge Hanen wrote in a memorandum accompanying his order that the lawsuit should go forward and that without a preliminary injunction the states will “suffer irreparable harm in this case” because “The genie would be impossible to put back into the bottle” once Obama’s amnesty memoranda are put into effect. The presence of millions of illegals aliens would then be sanctioned, which would be a “virtually irreversible” action.
The coalition of states, led by Texas and made up of mostly conservative states in the South and Midwest, argues that Obama has violated the “Take Care Clause” of the U.S. Constitution, which they say limits the scope of presidential power. They also say the order will force increased investment in law enforcement, health care and education.
In their request for the injunction, the coalition said it was necessary because it would be “difficult or impossible to undo the President’s lawlessness after the Defendants start granting applications for deferred action.”
Texas Gov. Greg Abbott
In a statement late yesterday, Texas Attorney General Ken Paxton called Judge Hanen’s decision a “victory for the rule of law in America.” Texas Gov. Greg Abbott, who as the state’s former attorney general had led the state into the lawsuit, said Hanen’s decision “rightly stops the President’s overreach in its tracks.”
Andrew Hanen, who’s been on the federal court since 2002 after being nominated by President George W. Bush, regularly handles border cases but wasn’t known for being outspoken on immigration until a 2013 case. In an order in that case, Hanen suggested the Homeland Security Department should be arresting parents living in the U.S. illegally who induce their children to cross the border illegally.
Congressional Republicans have vowed to block Obama’s actions by cutting off Homeland Security Department spending for the program. Earlier this year, the Republican-controlled House passed a $39.7 billion spending bill to fund the department through the end of the budget year, but attached language to undo Obama’s executive actions. The fate of that House-passed bill is unclear as Republicans in the Senate do not have the 60-vote majority needed to advance most legislation.
Among those supporting Obama’s executive order is a group of 12 mostly liberal states, including Washington, California, and the District of Columbia. They filed a motion with Hanen in support of Obama, arguing incredibly that the directives will substantially benefit states (!) and will further the public interest (!).
A group of law enforcement officials, including the Major Cities Chiefs Association and more than 20 police chiefs and sheriffs from across the country, also filed a motion in support of Obama’s executive amnesty. They argue that amnesty will improve public safety by encouraging cooperation between police and individuals with concerns about their immigration status.
In a statement early today, the Obama White House defended his amnesty memos as within the president’s legal authority, saying that the U.S. Supreme Court and Congress have said federal officials can set priorities in enforcing immigration laws: “The district court’s decision wrongly prevents these lawful, commonsense policies from taking effect and the Department of Justice has indicated that it will appeal that decision.”
The White House is appealing Judge Hanen’s ruling. The appeal will be heard by the 5th U.S. Circuit Court of Appeals in New Orleans.
H/t FOTM’s MomOfIV and glenda