An ill-advised executive action

President Barack ObamaBarack ObamaOvernight Regulation: Trump administration reveals first regulatory agenda | GOP lawmakers introduce measures to repeal arbitration rule | Exxon gets M fine for sanctions violation Mounting nationwide immigration enforcement costs 20 attorneys general urge DeVos to keep college sexual assault protections MORE’s resort to executive action on immigration has set off a firestorm of criticism for overreaching in the exercise of his powers. Constitutional scholars as well as the partisan critics are now weighing in as to whether the president indeed has acted illegally.

Confusion over the legality of the president acting unilaterally rather than negotiating a deal with Congress is not surprising, as evidenced by Obama’s own apparent shifting of positions on this very matter. Widely reported are many past utterances by the president – even in the face of vigorous protests from his own supporters – that his hands were tied as long as Congress did not act given that he lacked the constitutional authority to act on his own.

Most telling was his firm statement last year on this very matter: “The problem is, is that I’m the president of the United States, I’m not the emperor of the United States. My job is to execute laws that are passed.” Now the president asserts his constitutional right to do what he previously had said was outside of his realm of authority.

Whether the president was right before or now, what is clear is that the resort to unilateral executive action in such a contentious policy area is fraught with serious problems. When the president uses executive authority to circumvent the legislative process, to institute new policy requirements without meaningful – or any – congressional input, he is inviting direct challenges to his action and for many he is undermining the very legitimacy of the law. 

Presidential direct action is more likely to be reversed than policy developed by Congress and the president through the normal law-making process with its necessary deliberation and compromises.  Admittedly, forming policy consensus between the branches in a period of divided government is not easy and the temptation for presidents to simply act on their own is strong, yet the constitutional system of checks and balances never was intended to be efficient or simple. Generally it is far better in the long run to have a system built on deliberation and accommodation by both elected branches, than to have a president merely single-handedly announce a policy in the face of significant congressional and public opposition.

Indeed, the president’s defenders point out that the House and Senate have the power to undo the president’s action through legislative initiative.  Further, the next president may even issue a declaration on January 20, 2017, reversing President Obama’s action. Yet in articulating the view that the president’s action is constitutionally legitimate because it is open to challenge and easy reversal, rather than having the finality of a dictatorial order, his defenders have actually revealed a deep flaw with the strategy of trying to effect legal change through executive direct action. It is hardly beneficial to the development of sensible policy to have presidential actions established, reversed, re-established, and so on.

Consider for example the long-standing policy reversals on providing U.S. funds for international family planning organizations. In 1984 President Ronald Reagan unilaterally announced a policy of no U.S. funds for organizations that provide abortion-related services or counseling (a policy that became known as the “gag rule”). President Bill ClintonBill ClintonTrump legal team spokesman resigns: report The Hill's 12:30 Report Lawmakers send McCain well wishes after cancer diagnosis MORE issued a presidential memorandum in 1993 reversing the Reagan action. President George W. Bush issued a presidential memorandum in 2001 reinstating the policy. President Barack Obama reversed the policy again soon after his 2009 inauguration. If a Republican is elected president in 2016, there is likely to be yet another complete policy shift the following year. Prior to all of these direct presidential actions, there had been a widespread policy consensus, legislatively developed and supported by several administrations over time, with some presidential directives issued that merely directed executive branch officials to take actions that were in furtherance of established congressional intent. 

There is no question that presidents may act directly to clarify and sometimes mandate executive branch departments and agencies to carry out existing laws. The critical question today is whether the president has acted within the boundaries of established immigration law or if he has overstepped his authority by making law unilaterally. But whether legal or not, the president has shortchanged the deliberative process of lawmaking built by consensus, undermined perceptions of the legitimacy of his immigration action, and he has ultimately put at risk the chances of success of his action.

 Rozell is acting dean of the School of Policy, Government, and International Affairs at George Mason University and the author of "Executive Privilege: Presidential Power, Secrecy, and Accountability" (University Press of Kansas, 2010).
 
This post was updated at 10:41 a.m.