Executive Action Intrigue

By Aidan Coyne

In 2014, President Obama, continually frustrated by partisan gridlock stemming from Republican control of both House and Senate, announced a change in the enforcement of immigration per the executive branch’s ability to direct the actions of federal agencies. For some conservatives, however, these actions stretched beyond the usual purview of presidents to shape the priorities of agencies and amounted instead to a fundamental alteration of the original law which the president is bound to enforce. And thus, the scene was set for the Supreme Court’s decision to hear a challenge to the action’s legitimacy.

Beyond the dry facts and legal considerations which will first and foremost decide the fate of Obama’s directives, there are several other facets to the case of interest to all Americans. First, there is the gravity of the issue of immigration itself. 2015 was, amongst other things, a year in which the topic of immigration whipped up public passion and discourse like few other political subjects, as the rise of Donald Trump attests to. By now, all informed readers will know the essential elements of arguments either pro or con; these vary from the practical (the necessity of immigrant labor in various fields versus drains on public resources) to the abstract (the fairness of rewarding illegal actions versus the inhumanity of mass deportation in the face of a broken system). Regardless of where one stands on the persuasiveness of these arguments, the importance of the president’s actions cannot be downplayed. Under Obama’s order, Immigration and Customs Enforcement will move to deport individuals chiefly with criminal records, or in other words, “felons not families”. Presumably the alternative approach is to equally prioritize the deportation of all undocumented individuals within the United States, which would leave approximately 11 million people hanging in the lurch and living in the shadows.

Further still, the case will be a litmus test for future executive action. Presidential candidate Hillary Clinton has highlighted her intentions to aggressively use executive commands as a way of working around an incalcitrant Congress. The Supreme Court, infamously composed of four stalwart conservatives and liberals and one right-leaning swing vote in Justice Anthony Kennedy, now has the possibility of severely limiting this strategy going forward. This may prove immensely consequential given the likely makeup of Congress in the future: the Republican frontrunner Trump trails the Democratic frontrunner Hillary Clinton in head-to-head polls and Republicans have strong grips on both the House and Senate. The U.S. government may continue to be paralyzed by partisan gamesmanship and political polarization if the Supreme Court strikes down Obama’s executive order.

Now that the situation has been laid bare, what can we make of it? First off, regardless of one’s political affiliation, there are reasons to be wary of the increasing use of executive power. In two consecutive political administrations, of both major political parties, presidents have shown increasing willingness to get their way by means of the power of the executive branch alone. But more fundamentally, this shows the deep disorder and brokenness of the American political system writ large. The American political system, of Enlightenment origin and the object of enduring national pride, has functioned decently well in guiding the fledgling state since its inception. But given the specter of future inaction in the face of a swiftly changing world, perhaps it is time to introduce electoral reforms, which reward greater party intra-discipline, more political parties, and greater party cooperation.

And what of the case itself? Well, in an apolitical world where all decisions are based on facts, rationales, and pure logic, the Court should rule in favor the administration. The ICE has quite a substantial task ahead of it to even deport the individuals targeted by Obama, let alone the monumental task of potentially deporting the entire population of undocumented individuals. Given this circumstance, it seems quite reasonable that the executive branch, which is rightly responsible for setting the overarching policies and methods for federal agencies, prioritizes the task of ICE to optimize its efficiency. I rather suspect, however, that we do not live in a purely rational world and so an intriguing argument lays ahead in America’s highest court.