Houston, TX (Law Firm Newswire) March 1, 2016 - Can the President of the United States issue executive orders and change the law, or just administer the existing laws?
In 2014 when Congress failed to pass the DREAMER Act, President Obama responded by deferring DREAMER deportations. In response to deportation protesters, Obama expressed that there should be no need for animosity, saying “I just took an action to change the law.” These words have prompted the Supreme Court to review the president’s power over deportation policy, and in a broader sense, the president’s executive power to change or dispense with existing laws in accordance with a clause in the Constitution.
The ongoing debate as to whether the President of the United States may issue executive orders that change or create new laws has been cycling in legal circles since the incident. Some political pundits suggest that when a president changes the existing laws, he is acting more like a king than a president.
Previously, courts had been relatively silent on this issue until recently when the Supreme Court began to take a closer look at Article II in the Constitution, which says the president “. . . shall take Care that the laws be faithfully executed.” To some legal analysts, those words mean the president should administer the existing laws, but not dispense with or change them.
The Supreme Court added this question for review: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” The call to question whether Obama “faithfully executed” the U.S. immigration laws in deferring deportation of DREAMERS as an executive order has the potential to affect presidencies in the future, depending on the outcome.
The Supreme Court’s explicit judicial questioning came as a surprise to many, and some refer to it as a bombshell. The issue of the president making significant changes to the law has been a hot button for many, but had never been deemed to be subject to judicial review until now.
Attorneys for the White House strongly suggest the Constitutional second-look is ridiculous, stating Obama followed the law and did not change it. That, however, is contrary to what the president actually said when the Executive Order was instituted. His statement was: “I just took an action to change the law.” Were they the wrong words said in the heat of the moment?
It may not matter what the president said. It may not matter what arguments the Supreme Court does hear, because they may yet opt to not answer the question. However, should the Justices choose to answer, even obliquely and/or broadly, the ramifications may become a can of political worms to haunt every future president.
The core issue in this situation is that it is not the mantle of office that makes a president, or a crown that makes a king; it is the power that comes with the office to dispense with parliamentary laws or not, based on existing English common law. And therein lies the conundrum, the tangled interpretation of “faithfully” and the concept of being granted “authority not to make, or alter, or dispense with the laws, but to execute and act the laws.”
The question is: Did Obama act in good faith or did he overstep the boundaries of the laws governing his office to implement his DREAMER executive order? There may not be a clear answer from the Supreme Court one way or the other.
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