Administrative Law & Executive Orders

December 4, 2014 5:12 pm
by David Jakeman

On November 20th, President Obama delivered a speech on immigration. His speech was grounded in the fact that these United States was a nation of immigrants with more than 200 years of dynamic immigration history, where immigrants shaped the geographical, economic, political, and judicial systems in America. Mr. President showed no signs of shying away from allowing immigrants to continue just that. He promised to issue an executive order on immigration reform, which would potentially allow 5 million people to “come out of the shadows and get right with the law” – and free them from deportation threats.

However, with the rise of the SNS and other instant communications mechanisms, along with the slow economy and jobs growth, the issue with immigration exploded in all levels of social, commercial, and political domain that is unprecedented in modern times.

As of today, 17 states have taken action to sue President Obama over his immigration actions. Their fuss is with the fact that President Obama cannot take unilateral action on immigration – only the Congress can fix the immigration policy. Apparently, these people have not taken a course in Administrative and Constitutional law.

With that, this article will provide you with short and sweet lesson on administrative law.

America has a republican form of government with three branches – executive, legislative, and judicial. The legislative branch, the Congress, has the power to write and pass laws. Then, it needs to be signed by President in order to become effective – as well as overseeing its enforcement. If there is problem with the law passed, then the judicial branch will either say yay or nay on whether it conforms to the U.S. Constitution.

However, there is a catch.

The Executive has the power to bypass the formal process.

FYI, executive orders have the full force of law – they take authority from a power granted directly to the Executive by either the Constitution, or the Acts of Congress. Now, upon judicial review, if the Court deems that the executive order is unsupported by the Constitution or statutes, then it may be struck down.

So then, let’s examine whether the Executive have the power to issue executive order on immigration in pursuance to the Constitution or the Acts of Congress.

Explicit executive powers are listed in the Article II of the U.S. Constitution. Upon quick survey, the Article II expressly confers upon the President to the status of commander in chief of the U.S. armed forces, to make treaties and nominate officials upon advice and consent of the Senate, and to give State of the Union “from time to time.” So, we can brush this one aside.

Now, here is the kicker. U.S. administrative law grants federal agencies the power to adjudicate, legislate, and enforce laws within their specific areas of delegated power. (You gotta ask “What?!”)
That’s right. With a special Congressional delegation of a responsibility, the Executive have the power to write a law, police them, and judge whether its own legislation or enforcement is “right” – hopefully, Constitutional.

So, has the Congress specially delegated to the Executive a responsibility in the field of immigration? Yes.

That is why we have United States Citizenship and Immigration Services (USCIS), an executive agency that performs administrative functions related to immigration, overseen by the Department of Homeland Security, an executive cabinet overseen by – you got it – the President. The USCIS writes and passes laws, enforces them, and adjudicates them every day.

And that is why Mr. President can issue an executive order in the area of immigration.