Though exit polls, post-election polls, and political analyses confirm that the Republican rout of the Democrats in the Congressional elections was rooted in voter dissatisfaction with the president’s policies, Mr. Obama nonetheless seems determined to pursue several of those policies by executive fiat.
Of particular note is his plan to issue an executive order gutting the deportation provisions of the Immigration and Nationality Act relative to illegal aliens – something that Congress declined to do on several occasions.
While there have been presidents who pushed the envelope of executive action before, not one of them approached the scope of President Obama’s contemplated action, especially given the extent of popular and congressional opposition.
The Constitution charges the president with the duty to “take care” that the laws are faithfully executed as enacted by the Congress, which is charged with the federal legislative power. Yet Mr. Obama plans to simply refuse to deport those aliens Congress unequivocally declared should be deported. To be sure, there is precedent for a president to choose not to enforce laws. Presidents have cited as justifications the alleged unconstitutionality of a law, equitable considerations in individual cases, and resource limitations. But the overwhelming legal consensus is that these do not apply with respect to the president’s immigration plan.
Thus, two law professors pointedly posed the following questions in an article in the University of Texas Law Review:
Can a president who wants tax cuts that a recalcitrant Congress will not enact decline to enforce the income tax laws? Can a president effectively repeal the environmental laws by refusing to sue polluters? Or workplace and labor laws by refusing to fine violators?
Indeed, in a September 2013 interview, Mr. Obama said he could not implement a plan almost identical to his current proposal because “essentially I’ll be ignoring the law in a way I think would be very difficult to defend legally. So that’s not an option.”
But that was then.
In any event, the Constitution gives Congress what is popularly described as the “power of the purse” – that is, the power to raise revenues through taxation and to decide how the money should be sent. The president has no original power to raise or to spend money. And in light of the president’s immigration plans, some Republicans are talking about limiting the availability of funds to the president for the implementation of his immigration executive order.
The stage is set for a real showdown between the legislative and executive branches of government.
