Why Obama’s immigration decision is legal — explained without the legalese


Todd Dwyer via Flickr

DREAM Act protesters for President Obama's visit to Austin

DREAM Act protesters for President Obama's visit to Austin

DREAM Act protesters for President Obama’s visit to Austin

After years of waiting for Congress to act, President Obama is set to announce sweeping changes to immigration policy. But can he just do that?

Yes, he can.

To explain why, let’s break down a statement from Sen. Chuck Grassley (R-Iowa) about the president’s plans, comparing him to two of his predecessors:

The actions of Presidents Reagan and Bush were merely tying up loose ends, carrying out a law Congress had just passed. President Obama is threatening to act directly against the wishes of Congress and on a far greater scope and scale.

The Constitution doesn’t limit presidential power based on the “wishes” of Congress. And certainly not what some leaders say about Congress. In order for a president to know what Congress wants, there must be a law on the books – simply stating opposition isn’t enough.

In a 1952 Supreme Court opinion, Justice Robert Jackson ruled that Courts are skeptical of presidential action when there is a law that bars his activity. But when the law is silent, then courts have given deference to the executive branch. There is no law telling Obama he can’t do this; so, legally he is on solid ground.

Congress deciding not to pass an immigration reform bill doesn’t tie the president’s hands. It simply means that he must stay within the limits of current law when acting. And current law is vague, giving the president lots of leeway on immigration policy. When it comes to prosecutions, lawsuits, and yes, deportations, the president has even more — in fact, complete — discretion.

Grassley notes that previous presidents acted 1) shortly after immigration laws were put in place and 2) to tie up loose ends. But neither of these conditions put any restrictions on Obama’s actions. In both cases, laws passed by Congress gave the president the authority to make big decisions; they don’t say they are limited to “loose ends” or only apply for a short time after passage.

The biggest difference between previous presidents and Obama? The political environment. Immigration puts the GOP in a tough position: Republicans must appease constituents opposed to reform without alienating a growing segment of the electorate (Latinos). Simply by taking action, Obama is putting pressure on Republicans.

The bottom line: while Obama is doing something that many members of Congress don’t like, this doesn’t make it illegal.

Daniel Bennett (@bennettdaniel), PhD, contributed to this post. He researches the conservative legal movement. He is a professor of political science at Eastern Kentucky University.

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