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With DREAM Order, Obama Did What Presidents Do: Act Without Congress

President Obama on Friday announced he was using his  executive power to give some young illegal immigrants the right to stay longer in the United States.
Susan Walsh
President Obama on Friday announced he was using his executive power to give some young illegal immigrants the right to stay longer in the United States.

President Obama's announcement Friday that he is using his executive authority to defer deportation proceedings for young immigrants who entered the U.S. illegally but meet certain requirements was just the latest example of the president's use of his power to act without Congress on policy issues.

And like the other actions the president has increasingly taken as part of his "We Can't Wait" initiative, the decision announced Friday was characterized by Obama's political opponents as an abuse of power and violation of congressional prerogatives.

All of which goes to prove that Obama has reached the stage in his presidency, like so many of his predecessors, where his frustration with congressional inaction has led him to act unilaterally.

William Howell, a political scientist at the University of Chicago who wrote Power Without Persuasion: The Politics Of Direct Presidential Action, said in an interview:

"The boundaries of presidential power are constantly being negotiated and renegotiated. This is very typical. In some ways the option itself may be atypical. We haven't seen presidents issue this particular kind of policy initiative on their own before. But all the time, presidents are pushing out on the boundaries of their power and claiming new authority. And their ability to actually secure that authority crucially depends on how the two other branches of government respond.

"So the idea that presidential power is fixed and static is a deep misnomer. It mischaracterizes both the long trajectory of presidential power over time and it also mischaracterizes what the founders themselves had in mind. They fully expected various branches of government to be pushing and pulling."

Howell ties Obama's more forceful and unilateral approach — his change from attempting to reach compromise with congressional Republicans to going it alone — to last summer's debacle over raising the debt ceiling.

Howell said:

"He really got beaten up over that. Because he was perceived as not providing the kind of leadership and initiative and drive that we expect of a president. And since then he has said repeatedly 'Look, if Congress won't act, then I will.' And you have seen him in a variety of areas, take the area of education, unilaterally stepping in and issuing waivers to the most binding provisions of No Child Left Behind to states, on the basis of their willingness to adopt policies that he likes.

"It's really an extraordinary move because he's allowing states to opt out of some pieces of federal legislation so long as they adopt policy initiatives to his liking. And this is an area where Congress has just dropped the ball. The reauthorization has been up for years. For four years they've just taken a pass each year.

"Immigration is another one of these policies where Congress is effectively stuck. We saw that with [George W.] Bush where he tried to engage Congress and introduce comprehensive immigration legislation and he was beaten up over it. I think in this sort of policy area, this is going to be the wave of the future. [Presidents are] going to say, these are small incremental moves but they're going to do it on their own."

A New York Times story in April, in which Howell was quoted, relates how Obama decided to use his executive power instead of allowing all potential policy initiatives to be stymied by a gridlocked Congress for the rest of his time in office. A meeting sometime last fall between the president and his senior aides was apparently where the plan came together, with Obama actually being the one who came up with the "We Can't Wait" name for the effort.

As usually happens when a president uses executive orders or other powers to advance a controversial policy objective, the Obama announcement drew criticism from Republicans, who accused him of crossing the line into congressional power.

Even though Sen. Marco Rubio of Florida, who is sometimes mentioned as a GOP vice presidential possibility, has his own proposed legislative version of the DREAM Act — which bears strong similarities to the president's order — he criticized Obama on Friday:

"Today's announcement will be welcome news for many of these kids desperate for an answer, but it is a short-term answer to a long-term problem. And by once again ignoring the Constitution and going around Congress, this short-term policy will make it harder to find a balanced and responsible long-term one."

Rep. Steve King of Iowa, an immigration hard-liner, said in a statement:

"Americans should be outraged that President Obama is planning to usurp the Constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens," said King. "There is no ambiguity in Congress about whether the DREAM Act's amnesty program should be the law of the land. It has been rejected by Congress, and yet President Obama has decided that he will move forward with it anyway. President Obama, an ex constitutional law professor, whose favorite word is audacity, is prepared to violate the principles of Constitutional Law that he taught."

King is consistent in his opposition to federal immigration enforcement changes that lean toward more leniency; he opposed the reform efforts of President George W. Bush in 2006.

Some of the opposition in coming days will no doubt be partisan, however, Howell notes:

"There will be some people who will cry foul. Who will say this is a gross abuse of the president's Article II powers. But that, too, has always been true when presidents strike out on their own and act unilaterally.

"The people who cry foul are typically, not always, but typically members of the opposite party who don't like the policy that the president's advancing.

"You would expect Republicans to scream and holler about an abuse of executive authority when the president does this in the same way the Democrats were doing that when Bush was in office. At its base, this is about partisan politics that assumes the language of concerns about the Constitution. But what's driving people to speak out, really, is just opposition to the policies themselves. "

And some of those policies are the stuff of history books, whether it was Obama's immediate predecessor signing an executive order authorizing warrantless surveillance by the National Security Agency following Sept. 11 or, going back decades earlier, President Harry S. Truman's racial integration of the military by executive order. President Abraham Lincoln used his executive power to sign the Emancipation Proclamation while President Thomas Jefferson used his for the Louisiana Purchase. And there were members of Congress who expressed outrage each and every time.

They have another option available to them, however, Howell said:

"When members of Congress scream and holler about Obama taking certain actions on immigration policy, it's within their power to do something about it. They can enact a statute that would overturn or amend, whatever it is that Obama's doing. So in my mind calls by members of Congress to exercise self-restraint really ring hollow."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Frank James joined NPR News in April 2009 to launch the blog, "The Two-Way," with co-blogger Mark Memmott.

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