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Legal verses Constitutional on the Obama Executive Amnesty

By Harold Pease

Sadly the only two political parties covered by the establishment news are lining up along party lines with respect to President Barack Obama’s extending amnesty to about 5 million illegal aliens instead of with the U.S. Constitution which clearly leaves all law-making to Congress alone. Republicans do correctly use the word unconstitutional when describing this action but somehow never came to the same conclusion when Republican presidents also used executive orders to make law. As such their arguments appear somewhat hollow. Only those who hold both parties to the Constitution can make this case.

Democrats avoid the word unconstitutional, which Republicans openly use, because they know that they would lose because the wordage executive order, or anything like unto it, is not found in the Constitution. They prefer using the word legal. Legal and constitutional can be opposite. Adolph Hitler legally exterminated over 6 million Jews because he first made it legal to persecute them. By the time persecution included extermination no one dared resist him. Replacing Congress as the sole law-making body on the federal level was, for 150 years, not legal because it was not constitutional and everyone adhered to that measurement instrument.

Initially executive orders were largely inter-departmental directives. They were never to have the force and effect of law as only Congress was allowed to make federal law (Art. I, Sec. I, Clause I). The President was to execute the law of the legislative branch, not make or alter it himself.

On a rare occasion a newly passed law needs a statement of implementation by the president. For example, President Washington was directed by Congress to create Thanksgiving Day as a national holiday. His executive order doing so stated their request and his selection of the last Thursday of November as that day. An executive order implementing a single, recently passed (within weeks), law of Congress is constitutional. Very few of the executive orders of today fit the George Washington and constitutional model.

During the 20th Century the temptation for presidents to restrain themselves to this model was too great. Beginning with Theodore Roosevelt, the Progressive Era decidedly tried to go around the Constitution. Presidents, fearing rejection of Congress on something that they wanted, and not having a specific single act of Congress authorizing their action, began gluing pieces of ancient laws together—some decades old—and initiating an executive order from these. Congress should have proceeded with impeachment as presidents were usurping their clear constitutional jurisdiction but didn’t, largely because members of Congress, based upon party loyalty, protected their own constitutional abuser.

It was Richard Nixon, during the 1970’s, that found the burden of gluing pieces of ancient laws together to make an executive order too much work and simply issued them without it. Impeachment should have followed on this issue alone but didn’t. Presidents from his time to ours have continued the practice of making executive orders simply presidential decrees as dictators do, effectively creating new laws without any pretense of actual constitutional authority. Each expansion of executive power, often with tortured logic as in Obama’s Executive Amnesty, becomes the rational for even greater expansion by a future president under the guise of past practice.

So it comes to this. Democrats defending the President cannot use the word constitutional because his action is decidedly not. They confuse the public by using the word legal because previous perversions of previous presidents have made it “legal” because Congress did not protect its sole right to make all federal law by voiding all EO’s, at the time, not consistent with their law-making jurisdiction.

Democrats remind us that Ronald Reagan, George H. W. Bush, and Bill Clinton have all done the same thing. This is only partially correct. That each have made law by executive order is true but none have done so openly and defiantly in the face of opposition of the leadership of both houses of Congress and in defiance of existing law. None did his executive order after the American people soundly rejected his policies in an election no more than three weeks before. And none did an executive order after having told the American people more than two dozen times on different dates in multiple places that he had no constitutional authority to do so, even arguing at one time that he would have to be an emperor to do so. Obama’s perversion of executive orders is one of the worst and must not be allowed to stand as the new model for future presidents or Congress will have effectively voided itself as the sole law-making authority.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.