President Obama appears to be weighing the possibility of unilateral executive action to redefine the legal status of between 5 and 10 million illegal immigrants. His party’s defeat at the polls just two weeks ago appears not to have chastened the President, but has, perhaps, precipitated a constitutional crisis.

Obama’s defenders are invoking previous Presidents to justify his actions. Abraham Lincoln used executive authority for the Emancipation Proclamation and, as James Clyburn (D-SC) reminds us, Harry S Truman used executive power to integrate the armed services in 1948.

http://youtu.be/OtiSUy44254

In fact, Obama as Lincoln is a popular simile. Lincoln was no stranger to executive power, and neither was Truman. In spite of insistence to the contrary, neither comparison is helpful or valid.

Abraham Lincoln engaged in many constitutionally questionable executive actions as President (the diminution of habeas corpus, misappropriation of funds, and suppression of speech and press are near the top of the list) and Truman not only integrated the military, but used executive power to seize the nation’s steel mills, which were under the threat of strike.

Lincoln acted within the context of the Civil War, and the uniqueness of the conflict must color any interpretation of Lincoln’s actions. Truman seized the steel mills during the Korean conflict, and while a work stoppage could have hampered our ability to fight in Korea, the Supreme Court determined national security was not an appropriate justification for Truman’s actions. His decision to integrate the armed forces, while not during a war, was at least well-connected to his power as Commander-in-Chief. At the same time, Truman’s authority to integrate can at least be challenged because Congress maintains (according to Article 1, Section 8) the power to make rules and regulations for the military.

Regardless, both men relied on their expressed power to act as Commander-in-Chief when extending rights or privileges to racial minorities. President Obama can make no such claim, regardless of his motivations. Congress has clear legal authority over immigration law, while President Obama’s role in immigration is to execute the law of the land. Though he has some discretion in how he enforces the law, an executive order of the size and scope being considered goes well beyond enforcement duty, essentially rendering our existing laws moot. Presidents cannot simply refuse to enforce laws they find repugnant, for if we grant them this sort of latitude, their denial of enforcement becomes quasi-legislative in nature.

Finally, the President’s defenders are using Reagan and George H.W. Bush as examples of how presidents have enforced immigration policy to the benefit of illegals. Both presidents determined that the sweeping immigration reform in 1986, which legalized millions, should not be used to break up families. The law gave legal protection to people who entered the U.S. before 1982. Obviously, children born here after their parents arrived might be subject to deportation under the law. Congress tried to remedy the matter but the House and Senate could not come to an agreement.

President Obama’s situation is, again, quite different. Reagan and Bush were implementing a significant immigration law and sought to do so in a way that was least disruptive to families who might have differing legal statuses. President Obama is threatening to use his power to achieve the overhaul he prefers, which is more akin to the 1986 law itself and NOT the enforcement actions that flowed from it. In short, while Reagan and Bush could argue they were making executive decisions about how best to proceed under their constitutional duties, President Obama is, more accurately, usurping the  constitutional duties of another branch of government–in this case, Congress.

It might of some interest to note that even some liberals are chagrined over President Obama’s potential actions. Jonathan Turley, a constitutional law professor, sees the President’s actions as potentially dangerous.

http://youtu.be/Sm3B2IM6_BI

Good for Turley. To his credit, he was equally critical of President Bush and his all-too-frequent executive over-reach, so this is evidence of a consistent principal as opposed to pure partisanship.