Executive Orders and the Constitution

Unless you've been hibernating for the past week or so, you know that last week President Obama issued an executive order that states that work permits to be made available to nearly five million unauthorized immigrants. To say that most Republicans are furious would be an understatement. For instance, the senior Senator from Texas, John Cornyn, remarked, “I believe his unilateral action, which is unconstitutional and illegal, will deeply harm our prospects for immigration reform,” while Texas's junior Senator, Ted Cruz, stated that “the president is behaving in an unprecedented way.” Senator Tom Coburn of Oklahoma went so far as to claim that this will cause the country “to go nuts, because they’re going to see it as a move outside the authority of the president, and it’s going to be a very serious situation,” and House Speaker John Boehner referred to the President as “Emperor Obama.”

Whatever one might think about immigration reform, President Obama's executive orders are anything but unprecedented, however. As a recent FiveThirtyEight analysis of presidential executive orders shows ("Every President's Executive Orders in One Chart" -- from where the above quotes were found), every President has issued executive orders (even Presidents Washington and Lincoln), and Obama has issued them at a rate lower than any President since Grover Cleveland (the chart is reproduced below). The fact that every President has issued them certainly challenges the claim that they are, in and of themselves, unconstitutional. To be sure, the Supreme Court has overturned some executive orders, and that could happen here, but to argue that executive orders are unprecedented or unconstitutional is simply wrong.

That, of course, doesn't make Obama's action right, but I'm fairly certain that most of the folks who've gotten their knickers in a twist said little or nothing about the constitutionality of executive orders issued by George W. Bush, George H. W. Bush, and Ronald Reagan. Likewise, many of those on the left who experienced heart palpitations when "W" issued executive orders are now busy explaining away why Obama's is perfectly okay (it wasn't that long ago when critics on the left referred to "W" as an "imperial president" -- "Bush acting as Imperial President" -- how quickly we forget).

In other words, what's really driving the debate isn't concern about the constitutionality of executive orders but about their underlying ideology. Most of the people who agree with a particular order's purpose will affirm its legality, and most of those who don't will reject it. And they do this even if their reasoning completely contradicts something they said 8 years before (which, by the way, includes our current President). No doubt many of you who read this will think that you're the exception to the rule, that you're part of that small minority of Americans who isn't affected by the norms of your family, friends, and the surrounding culture. Call me a cynic if you want, but I'm fairly certain you're wrong.