Obama – Saint or Sinner?

Exasperated by the failure of Congress to overhaul the immigration system, last week the President issued an executive order that lifted the threat of deportation from millions of undocumented immigrants. Does the President have power to make law in this fashion?

Presidential executive orders are intended to help the executive branch manage operations within the federal government. The orders have full force of law when they take authority from a power granted directly to the executive by the Constitution, or are made because Acts of Congress explicitly delegate to the President some degree of discretionary power. They are subject to judicial review, and may be struck down if deemed by the courts to be unsupported by statute or the Constitution.

Before the mid-term elections, the Congressional Republicans, led by House Speaker Boehner, talked about prosecuting the president for exceeding his powers through the use of executive orders. The Constitution is clear on this issue. A president is immune from prosecution unless he is charged with a criminal offence and exceeding presidential powers is not automatically criminal. Interestingly, The Washington Post reported that the Republicans were struggling to find a law firm in DC willing to accept the case. Washington has more lawyers per square mile than any other city in the world!

The proper course for the Republicans to take is challenge the executive order either through impeachment or an action through the civil courts. Congress could seek a declaration from the courts or “the last dangerous branch”, as Madison termed them, to set the executive order aside.

Impeachment is not a realistic option. After 3^rd January 2015, the Republicans will have a larger majority in the House, where bills of impeachment would pass. However, the 55–45 Senate majority is insufficient to convict Mr. Obama. A two-thirds majority is needed. Since the impeachment would be politically motivated and partisan, it will be seen by the voters as a huge waste of legislative time and money and doomed to fail, thus serving no purpose whatsoever.

However, a Republican-inspired law suit is highly probable. Obama himself must have some doubt as to the legality of his order. In his first term, he deflected approaches from the Latino community to use his executive powers to lift the threat of deportation from some eleven million people believed to be residing in America illegally. He said that passing new laws was for Congress. However, in 2012, the President shielded from deportation some 1.7 million immigrants aged 30 and younger whose parents had brought them to America.

Without any doubt, the right wing Republicans are spoiling for another battle with the President. Their hatred of Obama seems to go way beyond the partisan norm for unpopular presidents. I am tempted to suggest that the Tea Partiers and their cronies in American politics want Mr Obama gone for racist reasons.

What will the Republicans do now to undermine the Democrats? I anticipate they will flex their muscles in Congress by playing havoc with budget negotiations. Will there be another shut-down before Christmas? Maybe, except the Republicans may fund particular agencies so that, for example, the military and all its bases within USA can function. Is there any prospect of new legislation on any current problems during the two years of the 114^th Congress? Probably not. If the Republicans pass laws which are anathema to both the Democrats and the executive branch, there are insufficient votes in the House and Senate to override a presidential veto.

What should the Republicans do? With regards to immigration, there is cross-party belief that the American system is fundamentally flawed. They should work with Mr. Obama to produce revised and acceptable sets of laws. Likewise with budget and other issues, they should work with Democrats to produce something acceptable to the centre. In this fashion, the Republicans would demonstrate to the American voters that they can rise above partisan politics, resist fighting for ideals shared by only the few and raise their profiles for 2016. They need to remember that the new-found majorities in both Houses of Congress is on the back of a 31.4% voter turnout.

On a personal level, I find it odd that in America, a country founded by newcomers and built on the backs of nineteenth and twentieth century immigrants, there is so much opposition to people who, generally, are looking for a better life for themselves and their families through work and are willing to take on tasks that many Americans will not consider. Who will pick crops in the extreme heat of the California valleys? Who will do the menial tasks in hospitals and care homes? Who will do the dirty, low-paid work of America which keeps the middle classes in comfort? Economist J. K. Galbraith termed the conundrum, “the culture of contentment.” Surely, even illegal immigrants deserve the best efforts of legislators to make life fair for all.