How Far Can The President Go To Overhaul The U.S. Immigration System Without The Blessing of Congress?

President Obama reiterated his commitment to immigration reform and reproached the House Republicans for their unwillingness to confront this important issue. Potentially, the combination of four factors ─ Pressure from the immigration advocates that the President has done little on the immigration issue; Speaker John Boehner’s statement that the House would not vote on immigration legislation this year; the surge of children crossing the southern border (mostly from Mexico and Central American countries of El Salvador, Guatemala, and Honduras); and strategic positioning for the upcoming midterm elections ─ have all led to this recent announcement.

Acknowledging the demise of his more than yearlong effort to enact compromise legislation, President Obama, in a recent speech, said that he would use his executive powers to make potentially sweeping changes to the nation’s immigration system without the blessing of Congress. Political and immigration pundits have begun speculating that the actions could be as far-reaching as: (1) expanding the Parole in Place, (2) not counting family members against per country cap, or (3) giving work permits and protection from deportation to millions of immigrants now in the United States.

Although the President announced that he will make sweeping changes to the nation’s immigration system, during the same speech, and before that as well, the President, a former Constitutional Law Professor, made it abundantly clear that that he does not prefer taking administrative actions. Rather, he would prefer permanent fixes through bipartisan legislation to rectify the defects that exists in our broken and “defunct” immigration system.

So the real question are: (1) why the President does not like taking administrative actions, (2) why administrative actions are not permanent fixes to the obsolete immigration system, and (3) why he prefers bipartisan legislation to pass the House. The President is well-aware of his constitutional limits. He does not want to cross the executive territory and disturb the division of powers among three branches of the government. The White House fears that going beyond the confines of executive territory may attract rigorous judicial scrutiny which could nullify the President’s potential legacy on the immigration issue.

Before analyzing what the President can and can’t do using executive powers to overhaul the immigration system, it is important to understand the constitutional limits within which the President and his Principal Officers can and should operate.

In 1952, the United States Supreme Court, in the landmark case of Youngstown Sheet & Tube Co. v. Sawyer, established a framework for analyzing whether the President’s issuance of an Executive Order[1] is a valid Presidential Action.[2] This framework established by Justice Robert H. Jackson (in his concurring opinion) has become more influential than the majority opinion authored by Justice Hugo Black, and has since been employed by the courts to analyze the validity of controversial Presidential Actions.[3]
Justice Black, writing for the majority, stated that under the Constitution, “the President’s power to see that laws are faithfully executed refuted the idea that he is to be a lawmaker.”[4] Specifically, Justice Black stated that Presidential Authority to issue such an Executive Order, “if any, must stem either from an act of Congress or from the Constitution itself.”[5] While Justice Black’s opinion indicated that he refuted the idea that the President possesses implied constitutional power, four concurring opinions maintained quite the opposite. Of these concurrences, Justice Jackson’s has proven to be the most influential. In his concurring opinion, Justice Jackson established a three-tier scheme for analyzing the validity of Presidential Actions in relation to constitutional and congressional authority. Essentially this proposition leads the inextricable conclusion th