Where Does the Constitution Say the President Can Make Law?
Published on June 21, 2012
Article One of the US Constitution, at least my copy, discusses the Legislative Branch of our government known as the Congress. It lays out the size of the body, the qualifications for office, a host of other provisions and, not incidentally, provides, " The Congress shall have power'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That is to say it reserves unto the Congress exclusively the right to make law.
Article Two of the US Constitution discusses the Presidency. It talks about who can serve as President, the President's power to make treaties and appoint ambassadors and a number of other topics. It gives the President no power whatsoever to make law. It does expressly say that he "shall take Care that the Laws be faithfully executed", that is that he is required to enforce the laws duly enacted by Congress.
This arrangement, pursuant to which the duly elected representatives of the people of the United States of America in Congress make law and the President enforces and administers those laws has stood us in good stead for over two hundred years.
Until last week.
President Obama, the 44th President of the United States and the first African American to hold the office, contemplates the burden of the office. | Photo: Archives |
On June 15, 2012, President Barack Obama, frustrated apparently by the challenges of the legislative process and the necessity to deal with lawmakers from an opposing political party, decided to change this system. He cut Congress out of the loop and assumed the power to make law unilaterally.
In a statement delivered at the White House, the President announced that he had directed the Department of Homeland Security to stop enforcing the law and compelling the deportation of illegal immigrants inside the United States that fell into a certain category. Eligible individuals must have come to the United States before age 16 and must have lived continuously in this country for at least five years. They must be living inside the United States at present and be under age 30. They must also be enrolled in school, have a high school diploma or be a member of the military or an honorably discharged veteran.
By order of the President, individuals meeting these criteria will now no longer be deported. They will instead be granted permission to remain in the United States for two years and to secure work permits. At the end of this two-year grace period, they will be able to apply to continue to remain inside the United States.
There has, of course, been legislation with similar intent, known as the Dream Act, introduced before Congress on numerous occasions over the last ten years. While the various versions of that act have varied to some extent over time, in the main they differ only insignificantly from the measure announced by the President last Friday. They provide generally that illegal immigrants can remain in this country on a "conditional" status provided they arrived in the United States before age 16, have resided here for five years, are between 12 and 35 years of age and have graduated from an American high school, obtained a GED or been admitted to an institution of higher learning.
The Dream Act has been discussed and debated for years. Members of both the Republican and Democratic parties have at certain times supported versions of the legislation. It has never gathered sufficient support from the members of Congress to become law, and, in fact, there is no version of the bill currently under consideration. In any event, its ultimate enactment or defeat is presumably now a matter of little consequence, as the President has put into effect its key provisions by unilateral, Presidential decree.
The White House
The White House, residence of every U.S. president since John Adams. |
The Founding Fathers constructed our government on the basis of a division of power amongst the executive, legislative and judicial branches. They did not do this, because they could not think of a simpler solution. Nor did they do it because they thought it would be the most efficient system.
They did it because their primary concern was with individual liberty. They fully understood, from intense personal experience, that a greater concentration of power might well be more efficient, but it would also mean the sacrifice of freedom and, ultimately, tyranny. They had lived under the rule of a monarch, and they did not wish to do so ever again.
Americans are understandably greatly divided over immigration policy and the question of how to proceed regarding illegal immigrants, particularly children, who have been in this country for many years, have stayed out of trouble with the law and have made themselves productive members of society. There is a significant room for discussion and debate on this topic, and whatever direction we ultimately steer, will almost certainly require compromise of some sort by all of us.
What we should not be divided about, however, is the danger posed to our liberty by the President's decision of last week. A President who can declare, as if by royal fiat, a measure to your liking today, is equally capable of issuing a decree tomorrow that you may find not only distasteful but repugnant. A President with the authority to make a law granting rights to one class of citizens can just as easily make a law taking away the rights of another.
For many years now we have been drifting into a situation in which the President appears to act not as the representative of a free republic but as a king in regard to national defence and foreign affairs. Republicans and Democrats alike have been happy to stand by and watch the Congress's power to declare war rendered virtually meaningless. The President dispatches troops, launches air strikes and involves us in one foreign entanglement after another and, often, the Congress is simply notified afterward of what is already a fait accompli.
Now we are starting down an even more treacherous path. Now we are moving into a world in which the President, based simply on his personal belief that a law should exist, can make it so. At that end of this path lies dictatorship.
In his statement of June 15, 2011, the President stated that he was issuing the above referenced instructions to the Department of Homeland Security because "it was the right thing to do". I searched my copy of the Constitution thoroughly for the provision that says the President can abrogate to himself the power to make law whenever he believes it is the "right thing to do". I couldn't find it. Maybe my copy is out of date.