Obama immigration order: Does 'audacity of hope' mean unchecked presidential power?

Faced with a Republican Congress that seems stubborn to a fault and content to see Obama fail, America’s chief executive has decided to grab what some are calling an unprecedented rein on executive prerogative in order to move his political objectives down the field.

His supporters say it’s part of the President’s “audacity of hope” campaign message, exemplified by Friday’s decision to relax immigration rules for young illegal immigrants – a necessary antidote, supporters contend, to political polarization, stalemate, and gridlock in Washington.

As with other Obama decisions to ignore parts of the Defense of Marriage Act, not prosecute medical marijuana, and allow some states to opt out of No Child Left Behind provisions, the immigration order became perhaps the boldest decision yet by a president seeking reelection, critics say, to ignore laws passed by Congress in order to achieve a political objective, setting a troubling precedent for the power of the presidency.

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In some ways, it’s part of the evolution of an “imperial Presidency,” a term used by historian Arthur Schlesinger, Jr.  to describe Richard Nixon’s challenges to traditional checks and balances. Obama’s predecessor, George W. Bush, also used a broad definition of presidential power to issue so-called signing statements where he declared parts of new laws unconstitutional and thus unenforceable by the commander-in-chief.

But whereas Bush reserved most of those powers for issues of national defense in wartime, Obama has expanded the president’s power into issues that are live wires in America’s political and cultural battlefields – gay marriage, marijuana, education, immigration – while reshaping the powers of the Oval Office in his wake. At some point, critics say, the question becomes: Who can check the President?

“This isn’t about immigration but about constitutional order,” says Mark Krikorian, executive director of the Center for Immigration Studies, a conservative-leaning think tank. “One problem is that even Democrats in Congress now have no right to complain about future usurpations – they might as well all go home and have Napoleon run the country.”

In his Saturday address, President Obama hinted at the forces that are pushing him to take what some are calling extreme measures to govern. While he said Republican recalcitrance is a reason to vote in November, he also hinted that the political situation is forcing his hand as an executive. “There’s no excuse for Congress to stand by and do nothing while so many families are struggling – none,” Obama said.

A White House spokesman expanded on the President’s thinking in an interview with Politico.

When Congress blocks Obama’s agenda, the unnamed spokesman said, “we look to pursue other appropriate means of achieving our policy goals. Sometimes this makes for less than ideal policy situations – such as the action we took on immigration – but the President isn’t going to be stonewalled by politics.”

On the immigration issue, it’s still unclear whether the order overreaches the president’s constitutional prerogative. DHS said the order does not guarantee a path to citizenship or suggest amnesty, but is merely an expansion of constitutionally appropriate prosecutorial discretion over individual cases.

But many headlines highlighted another takeaway: That the President somehow has the power to actually order ICE agents to stand down from prosecuting their jobs, en masse. Critics say that Obama committed a constitutional fault if he bypassed Congress to create a new program where people can apply for a government benefit.

But even assuming that the order is legal, even progressive legal experts say Obama’s modus operandi has begun to undercut the basic balance of power in Washington.

His moves “fit a disturbing pattern of expansion of executive power,” constitutional law professor Jonathan Turley, who usually sides with progressive ideals, tells Politico. “This is a President who is now functioning as a super legislator” who is “effectively negating parts of the criminal code because he disagrees with them. That does go beyond the pale.”

“Obama … has tried best, through hook or crook, to change America in ways that simple were not possible through legislative or even judicial action,” adds Victor Davis Hanson, a former classics professor and currently a fellow at the Hoover Institution, in a piece for the conservative National Review.

“Give the President credit,” he writes. “He has thrown down the gauntlet and essentially boasted: This is my view of the way the new America should work – and if you don’t like it, try stopping me in November.”

It’s a message that many of the President’s supporters, some of whom have grown apathetic amid poor economic news and concerns about the overall direction of the country, have been waiting to hear, some political observers say.

“Obama came into office saying, ‘I’m going to work with Congress, I’m going to change this town,’ and he held up that hope for way too long, according to his supporters,” says Matt Barretto, a political science professor at the University of Washington, in Seattle. “Now you’re starting to see him realize that, ‘The things I campaigned on, I might have to do some of that myself.’ I think it means we’ll see more bold steps from the President.”

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