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Paul Millus Authors, ‘Executive Orders: Constitutional Underpinnings and Legality’ for NYLJ

Publication Source: New York Law Journal

Millus_Paul_NewConstitutional Underpinnings
Executive Orders take two forms: these orders can require action on the part of the federal government and, at times, can direct inaction by the government. Significantly, nowhere in the Constitution is there any reference to the President’s right to issue “Executive Orders.”  Likewise, there is no express grant of authority by Congress to the President to issue such orders.  However, the arguable basis for Executive Orders can be found in several parts of the Constitution:  Article II, Section 1 of the U.S. Constitution which reads, in part, “The Executive power shall be vested in the President of the United States of America;” Article II, Section 2 stating “The President shall be the Commander in Chief of the Army and Navy of the United States . . .;” and  Article II, Section 3 which directs that, “The President shall take care that the laws be faithfully executed . . .”  Yet, Article II, Section 2, which lists the powers of the President, does not include the powers to write laws.1
As for the power to write laws, the Executive is to “faithfully” execute those laws passed by Congress as provided by Article I, Section 1 which vests all legislative power (the power to write and pass laws) with Congress – the only process by which this can be accomplished is outlined in Article I, Section 7.  An Executive Order that implements a policy in direct contradiction to the law is null and void unless the order can be justified as an exercise of the President’s exclusive and independent constitutional authority.2
‘Youngstown’: The Seminal Case 
In the 1952 Youngstown Sheet & Tube Co. case, the Supreme Court was asked to decide whether President Truman was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills in response to a strike that had crippled the industry.3   The government argued that President Truman’s actions were necessary to avert the national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency, the President was acting within the aggregate of his constitutional powers as the nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States.
The mill owners argued that the President’s order amounted to lawmaking, a legislative function which the Constitution has expressly delegated to Congress and not to the President. Justice Hugo Black delivered the opinion of the Court stating, “[t]he President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here.”
Pushing back on the contention that Presidential power should be implied from the aggregate of his powers under the Constitution – in particular, Article II, Sections 1, 2 and 3 – Justice Black made it clear that, insofar as Article II, Section 2 was concerned, “we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.”
In regard to Article II, Section 3, Justice Black added “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”  In sum, this was not an Executive Order that facilitated what Congress had authorized, rather it was a direction “that a presidential policy be executed in a manner prescribed by the President.” 4
Justice Robert H. Jackson issued a concurring opinion which set the framework for analyzing future presidential actions.  Justice Jackson’s view was that the extent of a President’s power in connection with the issuance of Executive Orders may depend on what that President faces in terms of the actions or inactions of Congress evoking a less than a bright line standard, to wit, “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” 5
Justice Jackson outlined three areas of potential Presidential authority.  The first was when the President acts pursuant to an express or implied authorization of Congress.  Under such circumstances, Justice Jackson opined that the President’s “authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
The second is when the President acts in absence of either a congressional grant or denial of authority.  Then, “he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”  In other words, where there is a void left by Congress, the President may be permitted to weigh in through
Executive Order.
The third area of potential Presidential authority is when the President acts “within his domain” which are “beyond the control of Congress.”  Here, the President would need to cite to actual constitutional authority which essentially trumps any such authority enjoyed by Congress.  Justice Jackson readily recognized that the President’s authority in this instance is at its “lowest ebb.” 6
In a more recent case, the Supreme Court used Justice Jackson’s three part scheme in connection with President Bush’s use of a military commission to try a prisoner held at Guantanamo Bay, Cuba.  The Court held that the military commission exceeded the bounds Congress had placed on the President’s authority and “because Congress has prescribed these limits, Congress can change them, requiring a new analysis consistent with the Constitution and other governing laws.” 7
Mandating Inaction
Presidents have been accused over the years of taking Executive action to mandate that no action be taken in connection with various spheres that the federal government normally would have the power to act.  For example, the Clinton and Bush administrations were accused of neglecting enforcement of gun safety laws and the Reagan Administration was questioned as to whether it deliberately failed to enforce antitrust statutes. 8 Under President Obama there have been several examples of mandated inaction including directives pertaining to non-enforcement drug laws pertaining to marijuana in states where its use is legal.9
The issues associated with the President’s power to issue Executive Orders mandating inaction have never been more pronounced than they are today, specifically in light of the imminent prospect of President Obama’s issuance of an Executive Order altering the landscape for millions of immigrants presently without legal status.  When and if he does, what will be the President’s legal authority?
The most recent “Executive Order” issued by the President in connection with immigration was the Deferred Action for Childhood Arrivals (“DACA”) which was a memorandum authored by the Obama administration on June 15, 2012.10   It was implemented by the Secretary of the Department of Homeland Security directing the U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement to practice prosecutorial discretion towards some individuals who immigrated to the United States as children and are currently in the country illegally.  It did not confer lawful immigration status, alter an individual’s existing immigration status, or provide a path to citizenship.
There is no reported case directly challenging the DACA on the grounds that the President exceeded his authority in authorizing the issuance of the “memorandum.”  In Arizona Dream Act Coalition v. Brewer, the Ninth Circuit granted a preliminary injunction prohibiting the State of Arizona from enforcing its policy by which the Arizona Department of Transportation refused to accept Plaintiffs’ Employment Authorization Documents, issued to Plaintiffs under DACA, for purposes of obtaining an Arizona driver’s license.11
Although decided on Equal Protection grounds, the Court noted that Congress has given the Executive discretion to determine when noncitizens may work in the United States, and the Executive has determined that DACA recipients may – indeed, should – work in the United States.12   In Heckler v. Chaney there is some support for the view that the executive branch cannot simply refuse to act in accordance with laws passed by congress. In that case the Supreme Court held, in reference to the Administrative Procedure Act that “[c]ongress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.”13  However , the Court also noted the “general unsuitability for judicial review of agency decisions to refuse enforcement.14
Based on recent reports from the government, it appears that “deferred action” will be used as the basis for the President’s anticipated action with respect to millions of undocumented immigrants.  Under this program, the immigration authorities may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation.15
A case may be selected for deferred action treatment at any stage of the administrative process and approval of deferred action status means that, for humanitarian reasons, no action will thereafter be taken to proceed against an apparently deportable alien.16  Deferred action is an “informal administrative stay of deportation which is granted only where the District Director, with the Regional Commissioner’s approval, finds it to be warranted.” 17  It is the “result of an administrative policy to give low priority to the enforcement of the immigration laws in certain cases [and] … the prosecutorial discretion exercised in granting deferred action status is committed exclusively to the Service enforcement officials.” 18
The question is:  will a possible grant of some form of status through the exercise of “prosecutorial discretion” for millions of undocumented immigrants at once directed by the President be ultra-virus under the Jackson tripartite analysis?
Prosecutorial Discretion
Looking at the first element of Justice Jackson’s three part analysis, whether the President’s action is taken pursuant to an express or implied authorization of Congress will be the subject of spirited debate.  The President may cite to 8 C.F.R. § 274a.12(c)(14) which references “deferred action” and provides a lawful basis for “aliens” who have been granted deferred action to obtain authorization form the Federal government to seek employment. 19  There is no question that, while Congress writes the laws on immigration, the Executive has significant authority as to how those laws are executed.
Against for those supporting the view that the President can, on a wholesale basis, effectively suspend laws passed by Congress providing for the deportation of those in this country illegally through “prosecutorial discretion,” an argument can be made that The President has “exclusive authority and absolute discretion to decide whether to prosecute a case” – even in this wholly unique situation where said discretion is to be exercised for millions of similarly-situated individuals.20   Further, it is well settled that judicial supervision of prosecutorial decisions is limited by the separation of powers and is guided by “the recognition that the decision to prosecute is particularly ill-suited to judicial review.”21   Nevertheless, whether the government actor, in this case, the President or the Attorney General, is “abusing” their discretion as a matter of law will surely be examined.22
Likewise, there is arguably concurrent authority between Congress and the President on the issue of immigration where Congress passes the laws and the President implements them or declines to do so.
Finally, as for the third element of Justice Jackson’s analysis, a strong argument can be made that the measures expected to be taken by the President are “incompatible with the express or implied will of Congress . . .” insofar as the exercise of prosecutorial discretion, not on a case-by-case basis, but on a class wide basis for millions, would appear to make Congress superfluous in large respect on the immigration front. This would be an unprecedented act for which legal authority either way is lacking and would appear to run contrary to the Constitutional authority imbued on Congress as the only branch of government empowered “to establish a uniform rule of naturalization.” 23
In sum, these are interesting times in which we live.  Unless Congress acts in a way that makes the Executive action irrelevant or expressly unlawful, in the end, the Courts will determine the legality of such an act by the President.
1Constitution of the United States Art. II, Secs. 1,2 and 3.
2Executive orders; Issuance, Modification, and revocation Congressional Research Service April 16, 2014 citing Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).
3Youngstown Sheet & Tube, 343 U.S. 582.
4Id. at 587-589.
5Id. at 635.
6Id. at 637.
7Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
8Zachery S. Price, Enforcement Discretion and Executive Duty. 67 Vand. L. Rev. 671 (2014).
9Memorandum from James M. Cole, Deputy Att’y Gen., to U.S. Att’ys, Guidance Regarding Marijuana Enforcement 3 (Aug. 29, 2013).
10The establishment of  DACA was not by actual Executive Order, rather it was in the form of a “memorandum” issued by the President’s Secretary of Homeland Security. See Memorandum from Janet Napolitano, Sec’y of Homeland Sec., on Exercising Prosecutorial Discretion with Respect to Individuals  Who Came to the united States as Children (June 15, 2012).
11Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014) (“[t]he memorandum does not have the force of law.
12See Saldana v. Lahm, 2013 WL 5658233, *1 (D.Neb.2013) (DACA is a form of prosecutorial discretion, through which immigration authorities make a discretionary determination not to remove an individual from the United States during a specified period).
13Heckler v. Chaney, 470 U.S. 821, 833 (1985).
14Id. at 832.
15Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n. 3 (9th Cir. 2001); see also  Matter of Quintero, 18 I. & N. Dec. 348 (noting that deferred action status, giving a person permission to remain in the United States indefinitely, is a matter of prosecutorial discretion.)
166 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.03 [2][h] (1998).
17Victoria v. Napolitano, 2013 WL 3746133 (S.D.Cal. Jul 15, 2013) quoting Matter of Quintero, 18 I. & N. Dec. 348, 349 (Nov. 16, 1982).
18Id.
198 C.F.R. § 274a.12(c)(14).
20United States v. Nixon, 418 U.S. 683, 693, (1974).
21Wayte v. United States, 470 U.S. 598, 607, (1985).
22See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 485 (1999).
23Constitution of the United States Art. I Sec. 8.
Reprinted with permission from the November 18, 2014 online issue of New York Law Journal. © 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.