Pres. Obama's Proposed Executive Order on Immigration: Truly "Unprecedented"?

Tonight's piece was inspired by several "spirited" Twitter conversations I have had over the last two days concerning President Obama's proposed/rumored executive order extending so-called "amnesty" to as many as 5 million illegal immigrants in the United States.

Specifically, the conservation started when @Clydetheslyde posted an image comparing the GOP's reaction to this proposed/rumored executive order as President Reagan's sentiment towards what the GOP so lovingly calls "amnesty" today.

Now, I've actually never been a big fan of "gotcha" images like this (though I do admit they are quite effective in motivating me into a debate), and I posted in counter that Reagan's "amnesty" was first passed by Congress and then signed by him into law, not solely by 'executive fiat'.

This wandered initially into a comparison of Obama's proposed/rumored executive action and other famous EOs like Lincoln's Emancipation Proclamation (which I challenged on several vital points) and then to the topic of how constitutional ANY executive really is. As per the usual with debates I have with @Clydetheslyde, it was a little heated but ultimately a good and respectful debate.

To add further fuel to this fire today, @Mobygrapefan pointed out to me today that actually, there was more to Reagan's venture into "amnesty" than I was originally aware of (per the Huffington Post).



One year after Congress passed the Immigration Reform and Control Act of 1986 (which extended "amnesty" to over 3 million illegal immigrants), President Reagan modified the language of this new policy to extend the benefits of the new law to the families of those who qualified. In addition, Reagan's successor Bush Sr further extended this same law in 1989 along similar lines (later backed by a concurrent bill from Congress).

So, in reality, President Obama's proposed/rumored is not completely without precedent, but once again, it's not that clear cut either..

While there is precedent from previous presidents issuing executive orders concerning "amnesty" for illegal immigrants, both of these prior EOs involved the sitting President making adjustments to the original 1986 law (not unlikely President Obama 'tinkering' with the employer mandate section of the Affordable Care Act..). What President Obama is proposing to do is issue new policy with NO attachment to any bill or law passed by Congress and is in fact acting in opposition to the GOP majority.

The legal difference between these two scenarios is simply this: a President can at least try to 'hide' behind the fact that as enforcer of federal laws passed by Congress, and thus 'tinker' with laws passed by Congress. What President Obama is proposing to do on the other hand is effectively issuing a new federal immigration law WITHOUT the backing or authority of a law passed by Congress to hide behind.

This all of course tempts one to get into a deeper conversation on the constitutionality of executive orders in the first place but I will save that for my next piece...

So I will leave you all with this food for thought: Is what President Obama proposing to do "unprecedented"? Not entirely, but that DOESN'T make it right or constitutional...

P.S.- Stay tuned in the coming days for a possible series of posts debating the value and constitutionality of ANY/ALL Presidential executive orders!

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