Immigration ends, imperial means

John Dickerson of CBS tweeted, “On the list of presidential power moves—emancipation, court packing, Youngstown, e.o. 9981—immigration move ranks where on brazen scale?”

Franklin Roosevelt’s court-packing plan was a legislative initiative, so it procedurally respected separation of powers—and it died in Congress. Abraham Lincoln carefully offered emancipation as a military move that he could rightfully take in his role as commander in chief, and Harry Truman’s Executive Order 9981, which desegregated the army, also was a commander in chief decision. When Truman in 1952 seized the steel mills, though, the Supreme Court ruled in Youngstown that he exceeded his authority as military boss by entering into a labor dispute.

The Youngstown decision set the bar for executive orders: fine if a president is adding some detail to what Congress has already decided, but not if he attempts to legislate in opposition to Congress. Justice Robert Jackson, in his concurring opinion, wrote that a president threatens the “equilibrium established by our constitutional system” when his executive order is “incompatible” with the expressed or implied will of Congress.

Some executive orders from past presidents arose from their will rather than from the will of Congress, and they pretended to go with the flow when they were actually redirecting it. President Obama, though, has aggressively stated that he is acting because Congress is not doing what he wants. Since he has not tried to pretend that he is furthering the will of Congress, even Democratic legislators have a hard time pretending that he is.

Lots of the Obama executive order is sensible, but ends don’t justify a demolition of checks and balances. The other two branches of the federal government need to punch back at this overreach. Democrats should worry about future Republican presidents standing on Obama’s shoulders to spread mischief and mayhem.