Obama’s Executive Actions Will Stand On Solid Legal Grounds

by Joseph G. Lariosa

CHICAGO (JGL) – Despite the threat of Republicans that President Obama could be sued or be impeached for exercising his prosecutorial discretion that allowed five million undocumented immigrants to stay in the United States without fear of deportation, I believe, President Obama’s executive actions last Nov. 20 will be standing on solid legal grounds.

Let’s take a look at the Youngstown Sheet & Tube v. Sawyer, a case that reached the U.S. Supreme Court on April of 1952, during the Korean War. In this case, President Truman issued an executive order, directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation’s steel mills to avert the expected effects of a strike by the United Steel workers of America.

Although, the Supreme Court rejected Truman’s seizure of the steel mills because it was incompatible with the expressed will of Congress based on the Taft-Hartley Act, in his concurring opinion, Justice Robert H. Jackson described three different situations and three corresponding levels of presidential authority:

  • The president acts with the most authority when he has the “express(ed) or implied” consent of Congress;
  • The president has uncertain authority in situations where Congress has not imposed its authority — either by inaction or indifference — and the president takes advantage of this “zone of twilight” to make an executive decision; And
  • The president acts with the least authority when he issues an executive order that is “incompatible” with the expressed or implied will of Congress. Such an act, wrote Justice Jackson, threatens the “equilibrium established by our Constitutional system.”

I believe, although the House version of S 744, Border Security, Economic Opportunity, and Immigration Modernization Act never hurdled the House of Representatives even after the Senate passed it last June 27, 2013 with an overwhelming vote of 68-32, one more vote of the two-thirds vote in the Senate that can withstand a presidential veto, the Senate vote gave Obama’s executive order “the most authority” with an “express(ed) or implied” consent of Congress when Obama adopted some of the contents of the S 744 in his executive actions.

It would be a mistake to assume that Obama has an “uncertain authority” nor is he treading on the “zone of twilight” because the House of Representatives has shown its “inaction or indifference” when it failed to put its S 744 version to a vote either in a subcommittee, committee or the plenary session.

Nor could Obama be accused of exercising the “least authority” and be “incompatible” with the expressed or implied will of Congress because he was merely carrying out the will of the overwhelming vote of the Senate.


Obama’s order just took a page from Republican President Ronald Reagan, who approved, instead of vetoed, the Immigration Reform and Control Act (IRCA) of 1986 although the 99th Congress passed the bill even it had a split Congress with Republicans having 53 majority and the Democrat with 47 minority members for a 100 total members in the Senate. While the Democrats enjoyed a 253 majority or 58.2% and the Republicans, 182 members or 41.8% for a total of 435 members.

The IRCA among others “amnestied” or legalized illegal immigrants, who entered the U. S. before Jan. 1, 1982 and had resided here continuously with the penalty of a fine, back taxes due, and admission of guilt; candidates were required to prove that they were not guilty of crimes, that they were in the country before Jan. 1, 1982, and that they possessed minimal knowledge of  U.S. history, government, and the English language.

About four million illegal immigrants would apply for legal status through the act and that roughly half of them would be eligible.

The criteria used in IRCA are mirror images of Mr. Obama’s Deferred Action for Parental Accountability (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). Why fault Obama for duplicating actions that were already adopted by Reagan and other Republican presidents?

If at all, Republicans feel unappreciated because Obama stole the thunder from them after their landslide triumph in the Nov. 4 midterm elections.

For instance, for parents of U.S. Citizens or lawful permanent resident, who had a child born on or before Nov. 20, 2014, as DAPA applicants, they must have a child, who may be a minor or adult, single or married. They must have continuously resided in the United States since Jan. 1, 2010 up to the present so that they will not be deported.

They must be physically present in the U.S. on Nov. 20, 2014 and at the time of the filing the application; did not have a lawful status on Nov. 20, 2014; have not been convicted of a felony, significant misdemeanor, or multiple misdemeanor offenses; and can demonstrate that they deserve a grant of deferred action.


The DAPA applications could benefit 4.1-million immigrants and their families.

On the other, for the expanded DACA, those who qualify should be under 16 years of age when they arrived in the U.S. (this removes the upper age limit, which currently limits DACA eligibility to only those youths who were born after June 15, 1981); have continuously resided in the U.S. from Jan. 1, 2010 (this was previously, set June 15, 2007) to the present; physically present in the U.S. on June 15, 2012 at the time of filing the application; did not have lawful status on June 15, 2012; currently enrolled in school, graduated from high school, obtained a GED, are enrolled in GED classes or are honorably discharged veteran of the Armed Forces; have not been convicted of a felony, significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety; and are at least 15 years old (may be younger if in removal proceedings).The expanded DACA could benefit 300,000 applicants.

So, why would the opponents of Obama take it against him when deporting these many undocumented immigrants will be cost-ineffective?

Imagine if one-third or about 4 million of the 12 million undocumented immigrants were deported to Asia, it will probably take 8,000 flights for a Boeing’s 747-81 to fly one way but will be coming back empty of passenger. If a one-way ticket for a passenger to Asia costs $1,000, a planeload of maximum of 500 passenger will easily cost $500,000. If there are 8,000 one-way flights taken, it will cost the U.S. government $4 billion to deport them while wasting another $4 billion when flights return without passengers.


Jason Furman, White House’s Chairman of the Council of Economic Advisers, said the executive actions taken by Obama will “add 0.4 percent to the size of the economy after a decade. That’s $90 billion.”  He said the “extra revenue associated with this growth would cut the deficit by $25 billion.  And finally, the skills and talents that immigrants would bring to this country would complement the skills of the Americans who are already here and we estimate raise wages by people born in the United States by 0.3 percent after a decade — not affecting the quantity of jobs for people born in America, but improving the quality of jobs for people born in America.”

As to the concern that a lot of people who would be getting work permits under the executive action and are competing with lowest-wage workers, Furman said this will not be so because Deferred action is about people who are already in the United States; for the most part, they’re already working in the United States.  But this would put them in a better position where their employers couldn’t exploit them, couldn’t use them to bargain down the wages of Americans that already are here.

He noted when in 1980, something far more extreme happened — the Mariel boatlift from Cuba, 130,000 people showed up in Miami, there was a seven percent increase in Miami’s workforce, and the evidence was it didn’t take jobs away from Americans and it didn’t lower their wages. (lariosa_jos@sbcglobal.net)

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