Executive Action makes you King?

President Obama had been rumoring using executive action for the past month or two, prior to the mid term elections. In other words, President Obama has been stating that, now, all of a sudden he would like to unilaterally push for immigration reform by bypassing congress. What is concerning is the flipping and flopping on this issue. Back in October 2010, when President Obama obviously controlled the Executive branch of the United States government and the democrats controlled both houses of Congress (House of Representatives and the Senate), he made the comments below on Univision.

President Obama stated:
“I’ve met with the Congressional Hispanic Caucus many times, I’ve met with immigration rights groups many times. I have not backed off of this issue. Just a few months ago, I gave a speech outlining very clearly my support for comprehensive immigration reform. My cabinet has been working very hard on trying to get it done, but ultimately, I think somebody said the other day, I am president, I am not king. I can’t do these things just by myself. We have a system of government that requires the Congress to work with the Executive Branch to make it happen. I’m committed to making it happen, but I’ve gotta have some partners to do it.”

President Obama went on to further state:
“But the most important thing that we can do is to change the law because the way the system works — again, I just wanna repeat, I’m president, I’m not king. If Congress has laws on the books that says that people who are here who are not documented have to be deported, then I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as a opposed to families who are just trying to work and support themselves. But there’s a limit to the discretion that I can show because I am obliged to execute the law. That’s what the Executive Branch means. I can’t just make the laws up by myself. So the most important thing that we can do is focus on changing the underlying laws. That requires Congress to cooperate. As I’ve said before, I’ve got the majority of Democrats who are ready to make those changes, but we are gonna need some help from the other side and that’s where our focus has to be.”

First of all, I don’t understand how the president needed more players (ie. the Republicans) to pass immigration reform in his first 2 years. He and the Democrat controlled congress passed the Affordable Care Act without the Republicans support. Also, the Dodd-Frank act was also passed without the support of Republicans. At that time, President Obama truly was king. He could have passed immigration reform if the democratic controlled congress would have supported immigration reform. I’m not quite sure I follow the argument that he needed other partners to help him pass immigration reform (ie. meaning the republicans).

Fast forward 4 years, again right before an important mid term election (ie. October 2014), and President Obama is stating he will unilaterally act without the help of Congress. What changed from 2010? Executive Action did not become clearer. In reality, not many people understand whether an executive order is constitutional. As an immigration lawyer, I’m not in the role of arguing whether something is constitutional or not. Our law firm helps navigate the laws we know are laws, and then advises and represents our clients in asserting their immigration rights. In 2009 and 2010 President Obama (when he was king) had a golden and unique opportunity to pass immigration reform, but he didn’t. Now when he has even less support, ie. his party lost a landslide election and are now the minority in both the House and Senate he wants to assert that he is king? This does not seem logical to me.

What I do know is that there is a separation of powers. I want immigration reform very badly. For immigration reform to stick, we need the Legislative branch of government to make the law, and we need the president to execute or administer the law. While I am confused on what President Obama was thinking, ie. that he was not king when he really was king, and now asserting that he is king when he really is not king, the times are going to only get more confusing if you have a Legislative Branch feeling left out of the law making process for immigration reform. If the legislative branch is feeling left out, then the implementation of any executive order will be very uncertain for immigration lawyers and potential beneficiaries of Executive Action. The new congress was just elected. The people in congress are required to assert the voice of their constituents in the law making process.

To be clear, we need immigration reform. Perhaps a guest worker visa system with a path to citizenship and securing the border would the necessary certainty everyone needs. A guest worker program would give undocumented people knowledge of their rights with a path to citizenship. Employers could legally hire who they want and when they want. People outside the US would have options for entering the US with a guest worker program and would not have to rely on sneaking across the border as their only option to get to the US. A secure border would help support our law enforcement agents. But having viable categories to enter the US would certainly cut down on the demand of people trying to cross the border illegally. This is not even mentioning the important employment based reform that is necessary such as increasing the amount of H1B visas, increasing the amount of green cards for skilled workers, among many other needed immigration reforms.

Let’s get back to the constitutional roles of congress making laws and the president administering the laws.