The Issue of Executive Orders on Immigration, and on Slavery

On April 22, 1793 President George Washington issued the first ever executive order, which, bypassing Congress, instructed federal officers to prosecute any citizens who interfered in the war between France and England. GOP President Theodore Roosevelt was the first President to exceed one thousand executive orders while in office. ronald reagan issued close to 400 executive orders, george w bush just under 300, and Barack Obama has yet to reach 200.

The US Supreme Court has twice discussed the issue of executive orders, first in the landmark 1952 case of Youngstown Sheet & Tube v Sawyer, and again in 2012 in the case of Arizona v United States. The bottom line as determined by these cases, is that the President has wide discretion to issue executive orders in situations where

regulation is needed to effectuate acts of congress or portions of the Constitution, and not outside of those areas or to establish new law. In the Arizona case, Justice Anthony Kennedy, appointed to the Court by reagan, described the broad discretion that the President and the executive branch enjoys in areas such as immigration where Congress has enacted wide-ranging legislation that cries out for interpretation and direction in its application. Wrote Justice Kennedy:
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“Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.”

This language is strangely similar to and echos much of today’s situation and even the words of President Obama.

A broad but ambiguous immigration bill that passed Congress in 1986 let to significant problems when it came to interpretation and enforcement, and in response, in 1987 reagan issued a broad executive order granting relief from deportation to the minor children of parents who otherwise benefited from the 1986 reforms. Additional problems with the law remained, and three years later, george h w bush issued another broad executive order that granted similar relief to approximately 1.5 million additional undocumented residents.

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It is interesting that so many opponents of reasonable immigration reform see the use of the Presidential executive order as usurping the power and purpose of a tool that should only be used for limited, non-controversial matters. Tell that to Abraham Lincoln, as the most important and life-changing executive order in the history of the country was the Emancipation Proclamation.

On January 1, 1863, Lincoln realized that he was powerless to impose a constitutional ban to all slavery, but he also realized that under his duties as Commander in Chief, and especially during wartime, he could devise a ban to slavery in the states with which the country was now at war, as a military tactic to aid the United States in winning the war against the Confederacy, and that became the Emancipation Proclamation. The Proclamation was based on the beliefs that 1) by freeing the slaves in the southern states, at once the economy of the Confederacy would be struck a serious blow due to the end of their free labor supply, and 2) the newly freed slaves would be welcomed as soldiers into the Union army, thus greatly increasing their manpower.

As with the many, many messages that President Obama sent the gop, practically pleading that Congress pass an immigration bill, Pres. Lincoln during 1862 gave the south warnings that unless the Confederacy surrendered, he would take such executive action freeing the salves, by the beginning of the new year, 1863.

Reaction was swift, not just condemning the idea of ending slavery, but perhaps even more so by how Lincoln had done it, by what opponents deemed a lawless and unconstitutional act, beyond his powers as President. Hyperbole, lies, and deceit were the theme of the day, but at least there was no fox fixed news noise then to spread it all instantaneously as is done today. Opponents such as Horatio Seymour, who would become governor of New York, and Confederate President Jefferson Davis, made wild claims that the proclamation would result in the widespread murders of former slaveowners by their emancipated slaves. In fact, Davis and others declared that Lincoln was in fact encouraging that to happen.

Would Congress have ever acted and moved towards abolishing slavery had Lincoln not begun the process? Certainly not a by a Congress that included representatives of all of the states pre-secession. Will Congress now pass a comprehensive immigration reform bill? No more likely now than was the case two days ago, more than one and one-half years since the Senate passed its’ comprehensive bill that tea bagger house leadership has refused to put up for a vote.

About theHoundDawg

For many years as a lawyer, I saw much of the good and bad of society, and did what I could to right many wrongs. The lack of understanding of what is good and bad, right and wrong, just and unjust, as evidenced by such events as the election of King W as president, (who as such far surpassed the evil of richard nixon but not quite that of ronald reagan) lead me in a new direction, to spend my time trying to understand what is happening to our society, to try as best I can to spread my insights to others, and along the way to maybe even eke out a living through the internet.
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