Most of my liberal pals are positively giddy about President Obama’s announcement Thursday night concerning his plan to take executive action on immigration. They are thrilled by the sincerity and compelling delivery of his speech to the nation in which he outlined his plans. Plans that they are convinced were long overdue. Almost universally, they say that Mr. Obama had to do this because, after all, congress failed to act.
It’s not my intention to speak to the substance of the immigration issue in this piece. I have my opinions about it, to be sure, but my desire here is to simply discuss the executive action itself, and express my concerns relative to that.
To start with, I think a fundamental feature of our government has been largely forgotten. Our Founding Fathers set up a government with a bicameral congress and an executive, virtually insuring that legislation would not easily be passed. The checks and balances found in bicameralism alone went a long way to insuring this. But the separation of powers that established an executive with veto power (and a required two-thirds vote to over-ride) made it particularly difficult. This was done by design. They had just gone through a war and revolution to rid themselves of what they considered to be a tyrannical government. They wanted to be certain they didn’t set up a new government that would simply end up like the one they had just thrown off. Thus when we hear about our government being gridlocked, or at a stalemate, or that they never get anything done, it is helpful that we remember that this is what the Founders preferred. They wanted to be sure that laws were not made willy-nilly, without careful consideration and debate, and most importantly, without the consensus necessitated by the procedure they set up.
Article 1, section 1 of the U.S. Constitution says this: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The executive cannot make law. To the extent that President Obama’s actions are the “making” of law, his actions will be unconstitutional.
I know there are some who couldn’t care less about the point I’ve just made. Their feeling is that the Constitution is a flawed document written by flawed men, and it’s foolish to insist upon adherence to it. There will be others that dispute the notion that Mr. Obama’s actions are “making” law, and thus are entirely within his power. And, given the evolutionary nature of constitutional interpretation these days, I’m certain many a judge will be reluctant to call this action by the President unconstitutional.
Not everyone, however, even on the political left, will be reluctant to suggest that the President has gone too far.
Last February, George Washington Law Professor and self-described liberal Jonathan Turley began to express his concern about the President’s intentions after hearing Mr. Obama promising to “go it alone” during his State of the Union speech. Turley said this: “I believe we are now at a constitutional tipping point in our system. It’s a dangerous point for our system to be in…”What we’re seeing is a fundamental change in our system. What we’ve been seeing for the last two presidencies is a very significant shift of power, largely from the legislative branch to the executive branch, and that’s creating a dominant presidency. We don’t have a system designed for that…the separation of powers may seem like some arcane principle, but it’s not there to protect politicians, it’s there to protect individual rights.”
Last week, being interviewed on FOX News, Turley said this:
“It’s a very sad moment but it’s becoming a particularly dangerous moment if the president is going to go forward, particularly after this election to defy the will of Congress yet again. I can understand the frustration, these are two political parties that cannot get along but as you said, we have a Democratic process and a Congress that’s coming in with the full voice of the American people behind them, that’s what an election is, you may disagree with the outcome, but you have to respect the outcome…What the President is suggesting is tearing at the very fabric of the constitution. We have a separation of powers that gives us balance and that doesn’t protect the branches. It’s not there to protect the executive branch or the legislative branch, it’s there to protect liberty. It’s there to keep any branch from assuming so much control that they become a threat to liberty…”I always tell my friends on the Democratic side, we will rue the day when we helped create this uber presidency…What the Democrats are creating is something very, very dangerous. They’re creating a president who can go at it alone and to go at it alone is something that is a very danger that the framers sought to avoid in our constitution.”
I would simply ask my Left-leaning friends to pretend that George W. Bush was still in the White House. Pretend that Dick Cheney was still Vice President. Take a deep breath and ponder the following question: Would you still have no problem with a president taking such action? Do you really want to grant the Executive Branch of our government this level of power when it is so clearly designated in the Constitution to be congressional alone? Does it not set a truly horrendous precedent regardless of who does it or what good you think it might do?