Op Ed: Obama's executive actions risk constitutional integrity

December 24, 2020

This op-ed was originally published in the Orlando Sentinel on January 29th.

By: Jeffrey Sikkenga

Nowadays, immigration is about the hottest of political hot buttons. Proponents and opponents are deeply entrenched, making consensus difficult.

Saying he was tired of “gridlock,” President Obama last year ordered the Department of Homeland Security to stop deporting certain unauthorized immigrants. Youth up to age 21 and family members of permanent residents could stay, even if they had entered illegally. In effect, federal agents would no longer enforce existing immigration laws against these individuals.

“To those members of Congress who question my authority to make our immigration system work better,” said Obama,” or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill.”

That answer did not satisfy the 26 states that secured an injunction freezing the immigration order. The Supreme Court has now decided to take the case and should issue a decision in June.

Regardless of one’s personal view of the administration’s vision for immigration reform, the most alarming issue here is constitutional, not political—the executive branch has rendered the legislative branch irrelevant. Laws on the books aren’t being enforced. Presidents, of course, exercise discretion in how they enforce the law but, under the Constitution, it is their duty to “take care that the laws be faithfully executed.”

Obama has insisted that “the actions I’m taking are not only lawful; they’re the kinds of actions taken by every single Republican president and every single Democratic president for the past half-century.”

Not exactly.

In 1965, Lyndon Johnson, a Democrat, took action against the immigration quotas that had been in place for several decades.” Today, with my signature, this system is abolished,” he said. But LBJ wasn’t talking about the pen and phone of go-it-alone executive action; he worked with Congress to enact a bill that tripled the number of immigrants allowed into the country.

In not going around the legislature, LBJ was following a well-established precedent. In 1924, Calvin Coolidge, a Republican, worked closely with Congress on a sweeping and restrictive immigration bill. It established a quota system allowing the approval of visas limiting growth to 2 percent for people of each nationality, as measured from the 1890 census.

Coolidge could have reached the same end without Congress by refusing issuance of new visas. But he didn’t. Coolidge even appears to have shared some of Obama’s sentiment. “I should like to see the administrative features of this law rendered a little more humane,” Coolidge said, “for the purpose of permitting those already here a greater latitude in securing admission of members of their own families.”

But Coolidge didn’t use executive fiat to enact that personal preference.

Immigration was no less contentious in 1924 or 1965 than it is in 2016. What has changed is the executive’s willingness to act independently. This undermines our Constitution and damages our country because it removes the issue from Congress and puts it in the courts. There, it becomes a technical, legal question for lawyers and judges when it is fundamentally a question about who we are, and what we are to become, as a country. That’s a question that citizens elect their representatives to decide.

The more the Supreme Court decides such issues, the more the American people will lose their chance to think constitutionally. Without that habit, we are in serious trouble. Popular opinion helps ensure our constitutional system works to resolve vexing problems such as immigration; yet this power can only be effective in a republic with an educated citizenry.

Unfortunately, we are becoming less and less educated about the principles underlying our Constitution. In the latest Nation’s Report Card test of history and civics knowledge, a majority of eighth-graders proved unable to associate the phrase “We hold these truths to be self-evident” with the Declaration of Independence. When a key element of our system rests on such a flimsy foundation, no wonder public opinion is so volatile and gridlock is so common.

To shore up this foundation, numerous initiatives of recent years aim to compensate for the dearth of civic education in America’s schools. Some initiatives focus on middle- and high-school-age students, others on university students; still others on teacher training.

If we expect our constitutional system of government to survive as an effective guarantor of our liberties, with executive power balanced by a strong legislature and independent courts, we must recommit to real civics and history education for the coming generations of Americans.

The failure to deal with immigration has created a crisis. But it also has again revealed a crisis — in civic education. For the health of our country, we must deal with both.

Jeffrey Sikkenga is Co-Director of the Ashbrook Scholar Program and Professor of Political Science at Ashland University.