While the power of the executive order is not explicit in the Constitution, the president does have the power to make sure that all laws and duties of Congress “are faithfully executed.”
But as Jennifer Rubin of the Washington Post argues:
“As president you don’t get to make up rules that change existing law simply because another branch won’t do what you want.”
Although her argument seems like a touchdown, I think conservatives will do themselves a disservice if they focus on the “legality” of the executive action; instead, it is critical to focus on the issue of precedent, and more broadly, how it meshes with conservative and libertarian theory.
What Rubin’s comments ignore, however, is the historical trend for presidents to circumvent Congress’ stagnation through executive action. For example, presidents have not followed or respected the War Powers Resolution dating back to the Nixon administration, Lincoln set the slaves free under executive order, and FDR interned thousands of Japanese-Americans using the power. In essence, executive order can be either a good or a bad thing (unless you really want to argue that FDR’s actions were justified or Lincoln’s were not; I would definitely not recommend it).
While executive orders may not be anything particularly new, the way in which President Obama is going about it is very polarizing.
As Shannen Coffin, a former Cheney advisor states:
“This action certainly looks a lot more like, ‘I’m changing the rules of the game,’ rather than ‘I’m just choosing not to exercise my discretion,’ and that runs counter to Congress’s power to decide what the law is.”
In acting in the way he has chosen, the President is setting a precedent that presidents can circumvent legislative inactivity through executive orders. I’m sure the President and other Democrats would not be so supportive of a Republican President’s decision to reform entitlements through executive order. Like football, government decision-making is a team effort. A running back cannot be effective without his offensive line, and likewise, a president cannot enact policies without Congressional support or approval.
With this trend in mind, Obama’s executive actions become problematic for Congressional Republicans, conservatives and libertarians. Morally, President Obama’s choice to provide amnesty for families is not a bad thing because it provides for protections of a select few illegal immigrants’ civil liberties. Realistically, however, the President’s actions are an overreach in regards to his afforded powers.
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