President Barack Obama, like many other Americans, is justifiably frustrated by Congress’ long-term failure to pass comprehensive immigration reform. But that doesn’t give him the authority to, as he put it, “change the law” on this issue.
The U.S. Fifth Circuit Court of Appeals in New Orleans delivered a timely reminder of that presidential limitation Monday. By a 2-1 vote, the judges upheld a federal district court’s ruling that has blocked the president’s plan announced by executive order a year ago, that would give work permits to as many as five million illegal immigrants while protecting most from deportation.
Though Justice Department lawyers said Tuesday that they will appeal the decision to the Supreme Court, there’s no assurance that their case will even be heard until after Mr. Obama leaves the presidency early in 2017.
As a former constitutional law professor, President Obama should have seen this legal setback coming. Indeed, he provided the plaintiffs — the attorneys general of Texas and 25 other states, including South Carolina — with strong evidence against his immigration power grab.
During a speech in Chicago last November, President Obama responded to a pro-immigration heckler by saying of his executive orders: “But what you are not paying attention to is the fact that I just took an action to change the law.”
Appeals Court Judge Jerry E. Smith, citing that revealing assertion, wrote in the 2-1 majority opinion: “At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes.”
That Justice Department position in court has been that the president acted within the boundaries of the Immigration and Naturalization Act of 1952.
Yet as the majority opinion pointed out, the president’s plan preventing deportation is “manifestly contrary to the statute.”
You need not be a legal scholar to know that only Congress, not the president, can “change the law.”
And you need not be a hard-liner on this issue to know that unconstitutional edicts from the White House will not solve our nation’s immigration problems.
Judge Smith also wrote: “Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states.”
As Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said Tuesday: “The Obama administration does not have unfettered authority to execute whatever it wants. The president simply can’t singly rewrite the country’s immigration laws. This is a win for the checks and balances established by the Constitution.”
So, yes, Congress should take on the long-overdue task of realistic, sweeping immigration reform, including a pathway to citizenship, or at least legal status, for millions of undocumented workers already within our borders.
But no president should presume to “change the law” on immigration — or any other issue — through overreaching executive orders.