I want to discuss the way in which critics of the President’s Executive Order are making their case, as I think at least one of the arguments raises a genuine dilemma that I keep coming back to in my recent research. Here are some ways of thinking about why what the President did is wrong (if you believe that):
1. He does not have the statutory authority to issue the order.
Presumably, a slew of lawsuits will be filed on this question. I have no idea what the answer is, but that will get sorted out by the courts.
2. He does have the legal authority to act, but doing so is a political mistake.
Maybe, but that will also be proven with time. If a Republican wins the White House in 2016 (0r in some future election assuming that no new statute is passed), then the order could be reversed.
3. He does have the legal authority to act, but he should not use that authority because the only legitimate way to do what he did is through legislation.
This is an argument that folks like David Brooks seem to be making, and I find this much more interesting. Why should this only be done through legislation? Because executive action in this respect is unprecedented? Because major policy changes should always be done via statute?
The reason I ask is that I do think that there are “legal but unconstitutional” actions, and I’ve talked about them in prior posts. (A simple example is when presidential electors in a state decide to vote for someone other than the person who won that state. They can do that, but the voters would throw a fit.) I think that this situation arises, though, only when there is extensive precedent against exercising a legal power (basically, a sort of desuetude) or there is a powerful norm that makes the legal action suspect.
Is there a norm that says presidents should not undertake “major” changes via executive orders that are lawful? I’m not sure. President Truman’s Executive Order desegregating the armed forces was a very big deal, but that was not done via statute. Affirmative action at the federal level is, to a large extent, based only on executive orders. There may be more examples. Do they cover the immigration case?