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Is it LEGAL for POTUS to "borrow" legislative power to pass immigration reform?

Is it legal for the President to assume legislative power?

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Bob Blaylock said:
That's something that those on the wrong never properly consider. When they cheer on a corrupt wrong-wing government official claiming unprecedented and unconstitutional power to implement wrong-wing policies,
what will happen later on, when that position is occupied by a right-wing official, who might now avail himself of those precedents to implement right-wing policies?
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If what they do is legal they might get away with it.

If it isn't legal they might get impeached and thrown out of office.

Let's wait and see what happens.
 
SouthernDemocrat said:
Its a semantics argument. The executive order only pertains to departments under the executive branch. In this case Immigration.
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Its not semantics at all. Everyone knows what a EO is. Its how its used thats the problem.
 
shrubnose said:
Anything that doesn't result in the president being impeached and thrown out of office is legal.
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:lol: no. Impeachment is a political move. The law does not cease to exist for the President simply because he is elected President.
 
cpwill said:
Regardless of the politics, is it legal for the POTUS to simply assume the ability to pass Legislation, rather than Veto / Enact it?
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In a general sense, no. Indeed, it's not POSSIBLE for the POTUS to pass legislation. Like, phyiscally impossible. The question makes no sense.

Now, if you're asking is it legal for the POTUS to take executive action that essentially mimics legislation being proposed in the congress or that essentially directs Executive administrations to disregard laws by the congress, then the question is a big resounding "It depends".

SCOTUS Justice Robert Jackson is the person credited with laying the foundation for the legality of executive orders, noting there are three types that exist. Specifically, one type that is likely legal, one type that is likely illegal, and one type that is rather borderline.

It is clearly legal when persuant to an expressed or implied authorization by congress. It's likely illegal when the actions are incompatable wit hthe express or implied will of hte Congress. Then there is what's known as a "zone of twilight" where the President is acting on something Congress has seemingly not spoken on either way.

So taking something like drug reform, that another poster threw out there...

If it seemed that in a general sense the Congress was likely going to be taking some action on drug reform and it's reasonable to believe it will occur, it just depends how long the debate and process may take, the President would likely have significant latitude to take executive orders as it relates to drug reform that is in line with what seems likely to pass congress while he waits for an actual bill.

If it seemed that in a general sense the Congress was unlikely to be taking certain action on drug reform and it's reasonable to believe it won't occur or occur anytime in the relatively near future, then the President likely has very little legal latitude to take use an executive order as it relates to drug reform that is in line with the what seems likely to fail to pass congress.

If congress simply wasn't dealing with drug reform and it doesn't seem to be on their radar anytime soon but the President felt some kind of loosening action was needed, then he'd likely have a legitimate argument for taking action with an Executive Order in a legal fashion. However, it would depend on the extent of what he did and whether or not Congress then decides to take up the issue.
 
SouthernDemocrat said:
Regardless of how you feel about this issue, the question of whether executive orders are "legal" is absurd. Of course they are. Moreover, Obama is hardly unprecedented in his use of them, or even gratuitous in his use of them. In fact he has been fairly restrained in his use of them considering the financial crisis and deep recession he took office in the midst of. Point being the "president" was set long ago:
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No, i'ts not absurd. It's so not absurd that it's a matter the Supreme Court has directly tackled before and acknowledged that executive orders can fail to be legal. Additionally, your continual focusing on a single notion of them...the AMOUNT that is passed...is pidgeon holing the argument and strawmanning people by simply painting the argument as singularly about the amount.

As I've already staetd to you before.

Zyphlin said:
SD, you're a smart guy so I don't know why you keep going to this ONE factor when it's been pointed out to you numerous times that peoples complaints are generally beyond simple "how many".

If people were claiming specifically that Obama is doing too many EO's or suggestnig EO's inherently are beyond a Presidents authority, then you'd be correct in posting this link. However, that's not what people are claiming...but you're just attacking a strawman of your own creation by acting like their focus is on one thing.

If I say a player is making poor decisions shooting the ball and he turns raound and goes "But coach! I only shot the ball 8 times and Johnson over there shot it 12! How dare you criticize me" that doesn't necessarily counter my point. Johnson's shots may've been high percentage while the other players wasn't. Johnson's may've been uncontested while the other players were while being double teamed. Johnson's may've been on set plays after ball movement, where as the other players were from him hogging the ball and putting up a shot.

There could be all sorts of factors as to why I say he was making a poor decision shooting; but he just throws out one metric and declares a win.

Unless you can show me an instance of the poster complaining about poor volume, this instance...as with previous instances where you've been called out about htis...is just you attempting to pidgeon hole an argument.

A large part of the argument regarding Obama and executive actions is not the volume, but the type of actions being under gone. Additionally, the issue is not even singularly resolving around "Executive orders" but a mass of executive action undertaken...both through EO's and directives via Executive Administrations.

When it comes to EO's, Supreme Court Justice Robert Jackson laid the foundation for the three types that exist.

Those issued persuant to an expressed or implied authorization of Congress. In these cases the POTUS's authority is maximum, with an EO being invalid only if what it does is outside the scope of the governments power.

The next are those with a "Zone of Twilight"; instances where a President acts singularly based on his independent power and Congress has not spoken on the issue. Here, the validity of the EO is a bit more questionable and depends on the imperatives of the event and contemporary imponderables.

Finally, there are those that are incompatable with the expressed or implied will of Congress. This is the flip side of the first instance and is where the POTUS's authority is at it's lowest. The EO would only be constitutional if it's something a court could disable the congress from being able to act on.

Justice Jackson pointed out that instances falling in that last category are ones where the notion of checks and balances within our government becomes at stake.

Focusing singularly upon the "amount" is a dishonest reading of peoples complaints, basically placing blinders on and deciding to argue the path of least resistance rather than take any effort to honestly understand their complaints.

It is not simply the number but rather the method and style in which it's being done.

The issues with regards to immigration is a wonderful example of this. Proponents of the President will note that he was simply focusing enforcement towards certain problems and away from others. A legitimate defense. However, also legitimate is the opponents of the President's point that many of the designations that the Obama administration made for determining enforcement closely match a law that was attempted to be passed by congress and failed. As such, you're have an issue of an Executive Order that is incompatable with the expressed will of Congress. It was a course of action specifically dealt with in Congress and was unable to come to pass. That causes a greater question regarding the legitimacy of that executive order beyond one that was done in line with what Congress stated.

This is why it's foolish when people keep throwing out pure volume numbers as if every executive order or action is equal and the same.

The changing of implimentation dates within the passage of Obamacare is another legitimate issue. For example, the law laid out SPECIFIC dates that certain factors had to occur. And while they did provide for exemptions, they highlighted that said exemption couldn't come into effect until 2017. When congress clearly includes a specific date, and clearly includes that an exemption can't be done until 2017, it's difficult to argue that expressed OR implied will of the congress was that changing to a date sometime between those two points was perfectly okay. Yet that has not stopped exemption after exemption being issued by the Administration regarding the employee mandate.

These are the type of issues that people have when talking about his over reach of powers and not simply "how many". Continually posting up the same tired chart of "how many" is a poor debate tactic based upon intellectual dishonesty and an attempt to strawman that does a horrendous job of actually offering up substantitve counter arguments to the claims being made.

You've had this pointed out to you by others before, and you even aknowledegd it, so why you continue to then fall back to the same tired argument is confusing to me.
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Fletch said:
The question is: what do you think? Do you want the president enforcing all laws passed by congress or only those he wants to enforce?
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What specific US CODE or federal statute written by Congress has the President over-turned by an Executive order?

What specific US CODE or federal statute written by Congress has the President ordered to ignore via an Executive order?


What specific US CODE or federal statute written by Congress has the President ordered to violate via an Executive order?
 
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Zyphlin said:
No, i'ts not absurd. It's so not absurd that it's a matter the Supreme Court has directly tackled before and acknowledged that executive orders can fail to be legal. Additionally, your continual focusing on a single notion of them...the AMOUNT that is passed...is pidgeon holing the argument and strawmanning people by simply painting the argument as singularly about the amount.

As I've already staetd to you before.
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And basically the whole argument boils down to: Executive Orders are unconstitutional when I disagree with them. ;)

Moreover, many people on here have complained about the number of executive orders and only switched their arguments when it was pointed out that he doesn't issue that many compared to most presidents. Finally, as I have stated before the fact that he came into office in the middle of a global financial crisis and an extremely deep recession yet is still issuing such a historically small number of them is evidence of his restraint in their use. It's not like they are being successfully challenged in the courts either.

There is a lot to complain about in regards to the failures and policies of the Obama Administration, I just don't see where his use of executive orders is one of them.
 
Why cant people just follow our pretty lax laws about entering the US?
 
Meh, it's about time we did away with executive orders.
 
Zyphlin said:
In a general sense, no. Indeed, it's not POSSIBLE for the POTUS to pass legislation. Like, phyiscally impossible. The question makes no sense.
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That is the phrase being used:

Sen Durbin: Obama will "borrow" the power from the Legislature for Amnesty"

And that seemed to be pretty much how President Obama described it as well - I'm going to simply pPass" X and if you go ahead and "pass" a version of X that I can sign, then gosh, that'll take precedence. That's pretty much a borrowing - I"m using this until you do.

Now, if you're asking is it legal for the POTUS to take executive action that essentially mimics legislation being proposed in the congress or that essentially directs Executive administrations to disregard laws by the congress, then the question is a big resounding "It depends".

SCOTUS Justice Robert Jackson is the person credited with laying the foundation for the legality of executive orders, noting there are three types that exist. Specifically, one type that is likely legal, one type that is likely illegal, and one type that is rather borderline.

It is clearly legal when persuant to an expressed or implied authorization by congress. It's likely illegal when the actions are incompatable wit hthe express or implied will of hte Congress. Then there is what's known as a "zone of twilight" where the President is acting on something Congress has seemingly not spoken on either way.

So taking something like drug reform, that another poster threw out there...

If it seemed that in a general sense the Congress was likely going to be taking some action on drug reform and it's reasonable to believe it will occur, it just depends how long the debate and process may take, the President would likely have significant latitude to take executive orders as it relates to drug reform that is in line with what seems likely to pass congress while he waits for an actual bill.

If it seemed that in a general sense the Congress was unlikely to be taking certain action on drug reform and it's reasonable to believe it won't occur or occur anytime in the relatively near future, then the President likely has very little legal latitude to take use an executive order as it relates to drug reform that is in line with the what seems likely to fail to pass congress.

If congress simply wasn't dealing with drug reform and it doesn't seem to be on their radar anytime soon but the President felt some kind of loosening action was needed, then he'd likely have a legitimate argument for taking action with an Executive Order in a legal fashion. However, it would depend on the extent of what he did and whether or not Congress then decides to take up the issue.
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Then I would say Obama has a legality problem that gives him enough wiggle room to argue in court until the 2016 elections make it moot.
 
Zyphlin said:
You've had this pointed out to you by others before, and you even aknowledegd it, so why you continue to then fall back to the same tired argument is confusing to me.
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I don't know. He's otherwise a pretty smart guy. I can only guess that he feels the need to defend the action, and that's all he's got?
 
Henrin said:
Meh, it's about time we did away with executive orders.
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That would, for example, get rid of Executive Order 12333 which forbids the US Military and Intelligence apparatus from using it's collection capability against US citizens en masse. It would also get rid of the ban on political assassination.

Executive Orders can play a positive role in governance.
 
cpwill said:
That would, for example, get rid of Executive Order 12333 which forbids the US Military and Intelligence apparatus from using it's collection capability against US citizens en masse. It would also get rid of the ban on political assassination.

Executive Orders can play a positive role in governance.
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The fact that executive orders are commonly used in very much the same fashion as a king would command his country is more than enough reason to do away with them once and for all. If the government decides to abuse the powers it has been given then the best course of action is to put further restrictions on their powers. It's very much the same as a child that decides to hit all his friends with his toys. Well, it's time to take that toy away. The child wasn't given the toy to hit all his friends with and presidents were not given the executive order to pass law with. Neither one of them can have it back until they learn to behave.

If the president desires to use his executive powers as a political club to hit his opponents with, well, he doesn't deserve to have them.
 
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SouthernDemocrat said:
And basically the whole argument boils down to: Executive Orders are unconstitutional when I disagree with them.
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No, the argument boils down to executive orders are potentially illegal when they are incompatabile with the express or implied will of the Congress. Have an issue with that take it up with the SCOTUS Justice that wrote it, not me. Smarmy little winky faces don't invalidate the SCOTUS's opinion on the matter.

Moreover, many people on here have complained about the number of executive orders and only switched their arguments when it was pointed out that he doesn't issue that many compared to most presidents.
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That's nice, but the OP of this post said nothing about the AMOUNT of times it did. That was the strawman you brought in to start beating. You can state your, unfounded, claim all you want as to whether or not people switched their argument. It doesn't change the fact that you continually, even after being called on it, present it as if the singular complaint or measurement of whether or not the executive orders being done are legitimate is on volume and nothing more.
 
SouthernDemocrat said:
I think its more nuanced. I think the executive should enforce the laws passed by congress. However, I also think that executive orders are a necessary component of a functioning government. I also think that being Obama has issued them at a lower rate than any other president in over a century, that all the complaining about his use of them is just partisan bitching.
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you are thinking he should be able to create and alter law?
 
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Wiggle room is the right word.

His quasi-DREAM act executive order is a great example of that "wiggle room".

He could argue, clearly, that part of congress did have expressed interest in such action to be taken as it was popular in the Senate. However, it's dicey because the House was largely opposed, making it clear that ALL of congress did not necessarily have an expressed interest on such a thing.

However, that "wiggle room" largely goes away come January 1. There is no real way that it can be argued that a similar executive order would be anything other than impcompatible with the expressed or implied will of the Congress, as it would be something both the Senate AND the House would strongly disagree with and are pointedly NOT passing.

The Executive Order is not a process for the POTUS to go "I'm going to do this thing that has not been able to pass the Congress, and it'll remain in place until congress either goes ahead and passes it or passes something else instead". The very fact that you're enacting something Congress is refusing to pass is a CLEAR indication that Congresses expressed or implied will is inherently incompatabile with your executive order.

He had wiggle room with this crap up until January 1st because he could point to half of congress and suggest there was implied will....that argument can no longer fly once the Republicans take office.
 
AliHajiSheik said:
Yes it was. Do you realize that it didn't apply in the North? Only places then under rebellion.
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And, if Lincoln had waited for Congress to act, our history could have been quite different don't you think?
 
It's a more nuanced question than "can the president pass legislation with an executive order?" The answer to that is no, of course. Not literal legislation.

However, the President can pass executive orders that fall under the authority already granted to him by Congress, which is a lot broader than most people think. As an example from my industry, the FAA has broad powers over our nation's airspace and the rules governing pilots, mechanics, airlines, etc. And highly independent authority - they don't need congressional approval to make changes to these regulations. Because Congress gave them that power, because Congress can't be arsed to sit down and look over every single little rule in the pilot's book. Few people in Congress would even understand the criteria for determining Decision Altitudes on an ILS approach, much less be able to make informed votes on changes to such a thing.

Since the FAA is an executive branch organization, Obama is in charge of the FAA. He could theoretically order the FAA to make regulatory changes - so long as those changes fall within the FAA's granted scope.

So the real question is, how broad is the authorization of ICE? How much power has Congress already granted the executive branch in this matter?

**** if I know, I'm not a lawyer.
 
Obama completely ignores the Constitution. He should be impeached but the only problem with that is we get Biden as a replacement.
 
Dittohead not! said:
And, if Lincoln had waited for Congress to act, our history could have been quite different don't you think?
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He didn't have to wait, he had the authority as Commander-in-Chief. It took more than Congress to pass the 13th Amendment.
 
cpwill said:
Regardless of the politics, is it legal for the POTUS to simply assume the ability to pass Legislation, rather than Veto / Enact it? Does our system of checks and balance of powers really grant the President the authority to do as he wishes and dare Congress to stop him?



For those of you who are tempted to vote "yes" because you A) agree with the policy and B) think that it's a situation that needs to be fixed in a timely manner, I want you to imagine President Scott Walker (or fill in any Republican, really) making the exact same argument, but instead of Immigration Reform, it's about Entitlement Reform.


"Our Entitlements are in danger. People are in danger. That's why I've decided through Executive Action to enact Paul Ryan's Medicare Reforms and privatize Social Security. Now, if the Congress can get me a bill that I can sign​
[ie: that I agree with], then obviously that bill will take precedence. But until then, we've got to act.​



etc. Remember, everything this guy does is setting a precedent.
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An absurd example. He is talking of directing INS to focus more on gangs and felons being deported first. He is not enacting legislation sui sponte. It is no different than your local police deciding to focus resources on bad neighborhoods.
 
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