Obama is reportedly poised to sign an executive order that will allow up to 5 million undocumented immigrants to avoid deportation.
The news has set off a firestorm in Washington about whether such action is appropriate use of presidential powers. So, what exactly are executive orders, how often are they used, and for what?
Executive orders have been issued by every American president except William Henry Harrison. In Old Tippecanoe’s defense, he died just a month after taking office. The vast majority of the more than 13,000 of them have been minor administrative issues that never reach the public eye, according to John Hudak, of the Brookings Institution, a liberal-centrist think tank in Washington, D.C.
“In general, they’re not things that raise too many eyebrows or are the product of major media reporting.”
Except when they are. As Hudak points out, the story of executive orders isn’t all ho-hum.
“We have a long multi-century history of presidents taking aggressive, bold, and far reaching action through the use of executive orders, which of course have the force of law.”
The Emancipation Proclamation was an executive order. And it’s how Truman integrated the military, how Eisenhower desegregate the public schools, and how Kennedy launched the Peace Corps. Now, President Obama is expected to use the power of his executive pen to reform immigration.
Cue the raised eyebrows. Here’s House Speaker John Boehner this week:
“We’re gonna fight the president tooth and nail if he continues down this path.”
Todd Gaziano is senior fellow in Constitutional Law with the libertarian Pacific Legal Foundation. He says that executive orders have been used to alter immigration policy in the past, but not like this - and not at this scale.
“If a president is announcing that he is going to give temporary work permits to 5 million people, that sounds much more like the creation of a new immigration policy and probably stretching legal authorities,”
Gaziano said.
Now keep in mind this isn’t governance by fiat. Executive orders can be overturned by future presidents, as Clinton did to Reagan’s order barring federal funding for organizations providing abortion counseling. Congress can overturn it with legislation, or refuse to fund it.
Then, says Brooking’s John Hudak, there’s that third branch of government.
“Courts are there to step in,” he said. “And presidents honor those court decisions and respect them and it happens all the time and it happens to every President that an executive action is seen as going to far.”
Gaziano said that when executive action is taken that incites that kind of pushback – from Congress or the courts – it’s simply bad for democracy.
That weakens the office of the presidency, it makes the courts increasingly skeptical of other claims of executive authority, and it make prevent that permanent solution that compromise could have yielded through legislation.
Both sides of the immigration debate have claimed that the will of the American people is on their side. But Gaziano warns about putting weight on popular opinion, pointing to FDR’s executive order that established Japanese American internment camps here during World War II.
“Probably the great majority of Americans liked the internment of the Japanese, that was very popular during World War II, but it’s a disgrace,” he said.
Gaziano says that at the end of the day, any executive order a President issues needs to be measured by two criteria: Is it legal, and is it Constitutional?
Hudack agrees.
“Just because the president says it doesn’t make it legal, but just because Congress doesn’t like it doesn’t make it illegal.”
And at this point, those legal details are still unknown. So, you can bet that if President Obama does take executive action on immigration, there will be no shortage of lawyers – on both sides of the debate – breaking out their fine-toothed combs.
Email the Curiosity Desk at curiositydesk@wgbh.org.
