The controversial Supreme Court case, United States v. Texas, is not just about immigration. While reasonable people can and do disagree over immigration criteria and procedure, this case is about something much more fundamental — Executive overreach. In addition, while today’s ruling is a loss for President Obama, progressives who express concern about a potential president abusing executive authority should be celebrating along with conservatives today.
On November 20, 2014, the Department of Homeland Security (DHS) issued guidance that conferred “lawful presence” on at least 4.3 million illegal aliens making them eligible for numerous federal and state benefits. One can argue that, in formulating immigration policy, Congress should consider special factors like whether an alien has a child who is a U.S. citizen. But Congress did just that and decided not to grant illegal parents special status. In our Republic, that’s where the buck ordinarily stops. The people’s elected representatives have spoken, and the people can express their approval or disapproval at the ballot box.
But not here. Frustrated with Congress’ refusal to pass his preferred immigration plan, President Obama imposed it by administrative fiat. Indeed, the President has repeated stated that the administrative guidance issued by DHS was intended to “change the law.” In enjoining the guidance from going into effect, the district court agreed, stating that President Obama “is not just rewriting the laws, he is creating them from scratch.”
That’s a problem. Article II of the United States Constitution vests executive power in the President of the United States. It further directs the Commander in Chief to “take Care that the Laws be faithfully executed.” While the President has considerable prosecutorial discretion, Article II does not authorize the issuance of administrative guidance that rewrites law.
In an unusual move, the Supreme Court signaled its concern with DHS’s guidance by adding a question to this case — whether the government’s November 2014 guidance document violates the Constitution’s Take Care Clause. Simply put, the most important question in United States v. Texas is whether a President may unilaterally “change laws” with which he disagrees.
The Framers of our Constitution would have answered this question with a resounding “No.” Central to the Founders’ protection of individual liberty was a constitutional framework meant to separate government’s powers. Under the constitutional design, government authority would be exercised by three co-equal branches of government. The division of powers — legislative, executive, and judicial — was intended to protect individual liberties by making it more difficult to abuse governmental power. Heavily influenced by the 18th century political philosopher, Baron de Montesquieu, the Founders believed that separated powers created a natural state of repose which protected liberty by requiring all three branches of government to act in concert to curtail individual freedom. As the late Justice Antonin Scalia more recently put it, “Without a secure structure of separated powers, our Bill of Rights would be worthless.”
The President’s latest guidance — put on ice today by the Supreme Court’s 4-4 affirmance of the Fifth Circuit’s decision below holding the guidance invalid because the President refused to allow for public notice and comment — is only one example of the dangerous nature of administrative agencies. The administrative state today routinely flouts constitutional principles. The vast bulk of “law” in the U.S. — legal rules that can be enforced against businesses and individuals — is made in the form of regulations by unelected, unaccountable bureaucrats located across hundreds of administrative agencies. More troubling still, those same bureaucrats are authorized to enforce compliance and to adjudicate disputes involving breaches of those regulations. And all of this often occurs with little oversight from the elected branches.
With the Presidential election cycle well under way, those on both sides of the aisle may worry about an executive who has the power not only to enforce the law, but also to create it. The Supreme Court today did not reach the question of whether the Executive may in fact create law (which of course he cannot), because it upheld the Fifth Circuit’s finding that the agency did not comply with the required public notice and comment. As House Speaker Paul Ryan just highlighted, we’d be wise to ask whether administrative agencies often wield similar, if sometimes less controversial, power. As Chief Justice Roberts recently put it, “the danger posed by the growing power of the administrative state cannot be dismissed.” That’s something for everyone to remember. Parties will come in and out of power, which is why we all have an interest in protecting the Constitutional framework that limits government’s power and protects our core freedoms.
Erin Hawley legal fellow at Independent Women’s Forum and former clerk to Chief Justice John G. Roberts Jr