It is being widely reported today (L.A. Times, Christian Science Monitor, et al) that President Obama is working on a new Executive Order that will directly affect immigration law - without the consent of Congress. The reaction has been sharp and quick, and reaches the extreme of talk of impeachment. But does the Take Care Clause or any part of the Constitution, allow for the broad use of Executive Power that has been promised to arrive after the summer?
First we should examine the Take Care Clause. This clause is found in the Constitution, Article 3, Clause 5. It states that "he [President] shall take care that the laws be faithfully executed."
How to interpret that clause has been the concern of every President that has ever existed.
In the 1935 Supreme Court ruling of Humphrey's Executor v. United States, the Court found that the President is obligated to follow the law,
"The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others has often been stressed, and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution, and in the rule which recognizes their essential coequality."
Further, in 1995 United States Assistant Attorney General Walter E. Dellinger III stated in an Office of Legal Counsel (OLC) memo that "...the President has no inherent constitutional authority to suspend the enforcement of the laws, particularly of statutes." [page 16]
Finally, in 2007, then-Senator Barack Obama directly addressed the actions of then-President George W. Bush, noting the avoidance of Congress and unbalancing of separation of power via use of Executive Power.
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The conclusion from all of this is that while the Office of the President has broad discretion and power to enforce and prioritize law, the President cannot forgo Congress and create law via Executive Power. Equally, the President cannot ignore law that exists, or chose to fail to execute law, in an effort to thereby create law.
Further, as noted in The Theory of Prosecutorial Discrection in Federal Law: Origins and Developments [pg 11], discussing the United States vs Cox it is noted that the Take Care Clause "does not explicitly provide for executive control over criminal prosecutions."
Still, in apparent violation of Cox, President Obama argued that it was executive prosecutorial discretion that allowed for Deferred Action for Childhood Arrivals (DACA) to be enacted in 2012. This Executive Order allowed for the mass exception of more than 300,000 illegal aliens from immigration law which would otherwise require deportation for violating immigration law. (The argument against DACA includes an overreach of the Executive Branch. As of this writing it has not been brought before a court.)
At this point we must also review what Executive Power is and allows. We cite Youngstown Sheet & Tube Co. v. Sawyer and the opinion of Supreme Court Justice Robert Jackson.
"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb... Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."
In a more general understanding, Executive Orders are expressly understood to be restricted from creation of law, as that remains in the sole domain of Congress.
Taking all of this into account, and looking at the promise of future unilateral action by the President - which will possibly take the form of direct acceptance of immigrants, qualified by the White House as "refugees", from their home countries and into the U.S. - we must again ask if this can be done? Does this violate the Take Care Clause? Does it strip power from the Congress and place it directly in the hands of the Executive Branch?
We conclude that the proposed action by the President would unbalance the separation of powers, a necessity as stated in the 1935 Supreme Court decision. It violates current immigration law in opposition to the 1995 OLC memo. It also exemplifies the very overreach of power that then-Senator Obama objected to in his speech in 2007.
Such action is directly incompatible with the will of Congress in regard to immigration reform. No matter how slowly Congress may be in enacting immigration reform, it is a matter that is before the Congress and being debated. The whims and political preferences of any President do not allow for the de facto creation of legislation, nor does the desire for a faster timetable to the President's liking.
There cannot be found in the Constitution, or any Amendment, an expressed or even implied power for the Executive Branch that allows a President to enact law because the President is at odds with the Congress or either of its Houses. In fact, it is the expressed and implied requirement that Congress maintain the power to legislate alone that is the purpose of the separation of powers of the Government.
President Obama is actively trying to coerce legislation of his personal preference, via this promise of unilateral action with the help of the media under the guise of humanitarian aide. It is a purely partisan effort, that erodes the Constitution and steals power from the people.
If this is allowed to come to fruition, especially if without challenge upon attempt to enact, it will set a precedent that will be used, and likely abused, by every President to come (of whatever political party) for the entirety of the existence of the nation. That slippery slope inevitably leads to the very form of Government that the Founding Fathers strove to prevent with the Constitution and the Take Care Clause.