Ten Arguments Against Obama’s Executive Action

by-Robert Charles

Mr. Charles is a former assistant secretary of state under Colin Powell, former counsel to a congressional oversight committee, a former litigator, and a teacher of government oversight at Harvard’s extension school. He is currently a consultant in Washington, D.C.

Understanding why pending executive action by President Obama on immigration, residency, and citizenship are objectionable, imprudent, and unconstitutional – and what can be done legally and politically about them, if he proceeds – requires a snapshot of history and law. Ten arguments stand between the president and such bold, unilateral actions.

First, executive directives of all kinds – and some have been creative – started with George Washington. They are theoretically justified by the indeterminate “executive powers” vested in each commander in chief by Article II of the U.S. Constitution. Their legal justification begins and ends there, and is necessarily nested in a larger constitutional text and intent, which has always favored avoiding unilateral executive actions unless absolutely necessary (as for national security). Thus, unless ceremonial or peripheral, the justification for directing agencies one way or another has been to clarify a law – never to create one.

So, here is the rub. Since the over-assertion of executive powers by Franklin D. Roosevelt (FDR), the U.S. Supreme Court and federal appellate courts have ruled unconstitutional any Executive Order (EO) that seeks to usurp or effectively legislate where Congress has spoken or reserves the right to speak.

Thus, for example, the U.S. Supreme Court overturned five of FDR’s EOs (6199, 6204, 6256, 6284 and 6855) for overreaching. Similarly, the Court threw out President Truman’s EO 10340, in which he attempted to control the country’s steel mills to put down labor strife. The Court was clear: the EO sought to make law, not clarify it. Again, an appellate court confidently nixed President Clinton’s EO 12954, which sought to prevent federal contracting with those who hire strike breakers. In the last case, an obvious conflict with existing law invalidated the EO.

Now we come to today. The first three arguments against the Obama EO are simple, and should be swiftly confronted in court if he issues broad executive action bestowing new rights on those otherwise not entitled to them under existing law or patently misinterpreting existing law to serve a political end, such as altering the process of citizenship. In sum, if he (one) obviously exceeds all formerly accepted constitutional authority, (two) seeks to legislate where the law is already clear or is clearly the province of Congress, or (three) intentionally disregards the law, the EO should be legally discarded, or viewed as “void ab initio” – that is, of no credibility or force.

Four: If you issue an EO making permanent residents or citizens out of a significant number (say, five to seven million) illegal, unentitled, or “undocumented” foreigners on U.S. soil, you are instantly obligating federal taxpayers and states to afford these newly minted “Americans” or “newly legal residents” any number of privileges, entitlements, and rights not previously held, above and beyond not being deported. This plainly costs taxpayers and States money, offering them every reason to appeal the decision and apparent standing to do so.

Next, there is the prudential side of the ledger.

Argument five: If you issue an EO that instantly grants “stay and work” status to currently illegal aliens, even if they have legal relatives, you instantly soak up part of the job pool from which real Americans are hoping to gain employment. In effect, you are hammering the working-class Americans again.

Six: If you issue this EO, you instantly send an international message – a new and shocking invitation: “We just gave away the citizenship or residency farm – so please line up or flood over and come get yours.” In effect, such an EO will trigger multiple future waves of illegal migration for economic purposes by new and unconnected illegal aliens who see that our laws are not being honored, and so they will come for free entry, too – if not at once, then soon enough.

Seven: For every justification based on an illegal alien having a legal U.S. relative, we can now expect that the same argument will be made by the five to seven million newly minted “instant citizens” or “instant legal residents.” In short, one thing all members of humanity – those legal and illegal – have in common is relatives. Once all those here illegally with relatives make their relatives legal, the newly legal (and formerly illegal) relatives will now declare that they, wonder of wonder, also have relatives – that deserve to be legal. Ad infinitum.

Eight: Status without assimilation is irrelevant, counterproductive, and historically illegal. Legal status is traditionally achieved by processes of extended learning, intentional assimilation, and legal naturalization – all at a pace set by national need and absorption capacity. Without understanding the American history, language, laws, values, civic duties, and social expectations, and what it takes to live (and what the nation expects of those living) lawfully, a resident made instantly legal is not American. Absent the process that Congress has considered necessary for assimilation, we would become no more than a big holding pen, a mismatched conglomerate of humanity, with nothing in common but place.

That is not America, never has been, and cannot be. To be American takes an aspiration, and a commitment. It takes time, effort, and lawful process, as well as social integration. A president can no more declare an unprepared member of humanity American than he can declare red blue or vice versa. Assimilation means following a long and winding legal, social, economic and legitimate process. It takes time; that is the whole point.

Nine: Just as adopting a child into a home affects other family members, instantly making “legal residents” or “citizens” out of five or seven million people – many of whom snuck into the country unlawfully – would have profound effects on the rest of the country. It cheapens the brand we call American; it undermines the values and processes in which we take pride. It slights and diminishes the struggle of those who have strived long and hard to become naturalized citizens, or permanent residents, many of whom are also from these same countries. It says that laws under which we live are of less value, and can be unilaterally upended by one man. It reduces respect for all those who have come to our shores legally, and who take pride in being legally American. This is no small matter. We are, collectively, only what we say we are and live up to – when we cheapen the definition of American, we cheapen it for everyone.

Finally: We are a nation and people of laws, not of whimsy or capricious acts by self-adulating leaders, not subject to any dictator or the assumption of power by this or that president. These lines are well-drawn. The U.S. Supreme Court long ago made the point. We are not ruled by executive order, never have been, legally and prudentially cannot be, and should not now be. For any president to believe that he has the power to step upon all these legal and prudential considerations, because he has a pen and a phone, indifference to rule of law, or illusions of unilateral authority is simply misguided.

Nevertheless, if the dark day comes when unilateral authority is asserted in these new and sweeping ways by a president, the answer is clear. Instant moves to court for actions to stay and then reverse these executive orders would be fitting. Preparations should be made for interlocutory appeals, specific relief by states and others with standing, preliminary and permanent injunctions, and defense of individual and collective rights across the country in federal courts.

On the political front, Democrats and Republicans who respect our Republic’s history and can see into the future should prepare to garner and act upon legislation that can be passed swiftly with a supermajority, making void the presumptive executive orders, and Americans should speak – as they did once already in November – with one voice, saying we are ruled not by one man, but by ourselves through Congress. That is the text, design, history, and enduring intent of our Constitution.

If there can be disagreements about other things, there can be no disagreement about that.

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Richard Slate
5 years ago

obama acts like he is a dictator that can do anything he wants, He ignores congress when they do not go along with his immoral corrupt policies and he ignores the constitution. He should be in jail for allot of the things he has done.

5 years ago

Sorry everybody, for the continuing verbal jousting between myself and Reality Check Jose. … My personality is “too firery” to just let these Liberal Socialist loons spew their vitriol without it being challenged. … For too long, we conservatives have let these donkeys bray and look where it’s brought our country. So forgive me again, but I’ll not let him spew his inaccuracies on this forum without being challenged. Hey everybody … I just saw the skit on Saturday Night Live on Obama and his Executive Order on Amnesty, you all need to see it, you too, Reality Check Jose.… Read more »

Bob M.
5 years ago

I don`t waste my time reading comment by the left wing nut jobs who infiltrate this site.They are given talking points from their leaders to try and disprove facts.Unlike the people that fallow left wing blogs,most of us have come to our conclusions by research,and studying what has happened in the past.Show me one thing that the left has tried in the past that has worked.If you find one,it will have to do with taking someone else`s money to pay for someone else`s stuff.The only way government can give out benefits,is by taking from someone else.The concept of working hard… Read more »

5 years ago

To Reality Check: I read your comments, and found all of them to be so full of errors in grammar, spelling, and punctuation that I was totally unable to discern your meaning in almost every case. I hope you won’t be offended that I gathered them all together, and asked some questions about your meaning after each of your posts. I understand that English is probably not your first language, and that you probably didn’t attend school in the United States. You may not even live in the United States, and if you do, you are probably here illegally. I… Read more »

Grace G
5 years ago

Well, the President’s actual Executive Action didn’t violate any of the legal principles this author worried it might do. It didn’t give citizenship. It’s temporary not permanent. It clarifies how the existing law will be interpreted – sets priorities for deportation that puts the parents of citizens or legal permanent residents at the bottom of the list – “defers” their deportations in favor of spending the enforcement resources on more urgent priorities – people who actually threaten the country’s safety rather than the hard-working residents who are doing the jobs (they already have jobs – they won’t be taking them… Read more »

5 years ago

“…The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedent. They saw all the consequences in the principle, anf they avoided thr consequences by denying the Principle. …”
James Madison

5 years ago

I don’t know who Reality Check is, or thinks he is, but I’ve contacted AMAC and told them to monitor the comments sections more closely. We obviously have a dissenter in the crowd – much like the paid protestors in Ferguson, MO — someone who is here to stir up trouble and emotions. Some call them TROLLS. In any event, I’m off the forum.

Reality Check
5 years ago

To anyone truly interested in the investigation into the legitimate SSN of the president go to the following site


Reality Check
5 years ago

I have two friends from Ireland that are undocumented. They didn’t hop a fence, they simply stayed after their visa expired. One is an electrician and the other is an auto mechanic. Either job is one that many US citizens would love to have. Both also have wonderful families with school children and neither has been contacted by immigration authorities. Building fences or walls (Communist East Germany) don’t solve any problems. People find ways to go over or under them. Attitudes towards one another present the biggest problems, as many comments to my posts illustrate. Most are just hateful, arrogant,… Read more »

Anthony Czartowski
5 years ago

What is the problem! It’s more than obvious that this guy and the King Maker’s behind him are destroying our Country. This has been going on for nearly six (6) years. I repeat, what is the problem! Please quit talking (Congress) and have the guts to do something, now that you have the tools and no excuses. It’s almost as if all are afraid of some form of reprisal for doing the right thing. Why is that? Is there something going on behind the scenes that we the American public are unaware of?

5 years ago

Arguing with an idiot never goes well . They will try to bring you down to their level no point trying. Just my humble opinion.

Ivan Berry
5 years ago

When the Reagan administration, following the Immigration and Reform Control Act (1986) extended the protections from deportation to the children of those Congress had granted amnesty to, the President was simply using his authority, not to go around Congress, but to using his authority to carry out Congress’ intentions. His actions were taken with the provision that the border security would be enhanced and that the act would not cause any wave of illegal crossings. Congress failed to live up to that promise. Bush Senior eased the policy regarding children and spouses of those who had been granted amnesty in… Read more »

5 years ago

No one can stop a “bull in a china shop”. Waay too late! And he has too more years!

Ivan Berry
5 years ago

Mr. Charles makes some good arguments as to the legality of Obama’s proposed actions, but to rely on the Supreme Court to make any decision on this gives me pause. The issue of “Standing” is too arbitrary. It would be a good thing if the States were allowed Standing, but too often the court doesn’t accept it. If all else fails, maybe the States could go the “nullification” route. Someone earlier commented about anchor babies. That issue could be resolved with legislative action should Congress so desire. Most problems could be taken care of if our Congress just did its… Read more »

5 years ago

Realty Check: good moniker, you really do need a Reality Check … I responded to your questions except those regarding my schooling. None of your business! … I’ll answer in detail when you can produce anyone from Obama’s classes at Columbia that even remembers him. There’s a reality check for you. Please educate our readers as to where you stand on illegal immigration, abortion, gay marriage, religion, the IRS scandals, Bengazzi and Fast and Furious. Are you one of those global warming alarmists from the ice age? Do you also claim to ever know of Jon Gruber? Do you think… Read more »

5 years ago

Reality Check: I suggest you go to the “Official” Social Security website and I quote: “The first three digits is called the Area Number. The Area Number is assigned by the GEOGRAPHICAL REGION. Prior to 1972 , cards were issued in LOCAL Social Security offices around the country and the area number represented the state in which the card was issued. This did not necessarily have to be the state where the applicant lived, since a person could apply for their card in ANY Social Security office.” So what you’re telling me is that Obama applied for his Social Security… Read more »

Bob M.
5 years ago

The way the tax code is written.The IRS could probably find flaws in every citizens tax returns.Then prosecute us,and throw us in jail.Which means they would have no problem separating us from our families.They wouldn`t care one bit about doing that to someone who mistakenly made a tax error.But we are supposed to feel bad for separating families who came here illegally,stay here illegally,and bleed our system illegally.Boo fricidy hoo.

Rick B.
5 years ago

Eleven. Leaving our national borders porous and unprotected against illegal immigration also leaves them unprotected against those who would do us harm. Witnesss the recent capture of four Turkish terrorist suspects in Texas who had been smuggled across the Mexican border just like these millions of other illegal immigrants:

5 years ago

Ignore the pajama boys please! They have their marching orders to infiltrate sites that are contrary to their ideology, and inject their opinions. It is nauseating though–understood. (It helps to imagine them in their footy pajamas!)

5 years ago

Just a few words on Obama Care: Prior to November 1-2014 my wife medical insurance coverage cost us $262.00 a month(Not Obama Care). My wife has worked and paid into Social Security for 47 years. In January she is able to file for Social Security. You want to guess what her Obama Care insurance will cost her.The cost will be her entire Social Security check she worked 47 years for . This is what they call Affordable Health Care. And you want to give 4 .8 million( and counting) people a free ride. Let’s get real!

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