Michael McConnell on Executive Orders, DACA, and the Constitution

Executive actions are often controversial, with members on both sides of the political divide crying foul when Congress is circumvented. President Obama’s executive actions on immigration, executed when Congress failed to pass immigration reform, while popular with many, have come under fire in the press and in the courts. On Tuesday, September 5, President Trump rescinded the Deferred Action for Childhood Arrivals program, or DACA, the executive action issued by President Obama in 2012 that allowed young undocumented immigrants to remain legally in the country to attend school and work. In this Q&A, Stanford Law Professor Michael McConnell discusses executive orders and the Constitution.

President Obama waited to issue an executive order on immigration because, he said, he wanted Congress to act. When Congress failed to act, he issued several, including what is known as  DACA, the Deferred Action for Childhood Arrivals program. Was his action constitutional?

Beyond Originalism: Lessons from History
Stanford Law School Professor Michael McConnell

President Obama waited to issue an executive order on immigration because he understood he did not have lawful authority to countermand an Act of Congress. The decision of Congress not to enact legislation a president wants is no excuse for acting unilaterally. I realize DACA has a lot of support. I support the policy myself, and hope Congress enacts it in some form. Children brought to this country by their parents, and raised in this country, are very sympathetic candidates for admission. But the Constitution gives Congress, not the President, the power to make and to amend the laws. If President Trump called on Congress to change the environmental laws and Congress refused, this would not give Trump power to dispense with enforcement of the laws by executive action.

Is there ever a constitutional justification for unilateral action by a president on matters such as immigration?

Certainly. The President can take unilateral action when he is authorized by law to do so. Presidents have very broad powers under the immigration statutes. President Trump’s moratorium on travel from certain Muslim-majority countries was a unilateral exercise of power delegated to the President by statute.

Why do we have executive orders—and when are they constitutional and when are they not?

Executive orders are written directives from the President exercising authority he has been given either by Congress or the Constitution. The fact that a presidential directive is called an “executive order” is of no legal significance. The President has no additional power by virtue of issuing an “executive order” as opposed to any other means of communication.

Attorney General Sessions announced on Tuesday that DACA will be recinded in six months and asked Congress to review the issue and act as it sees fit.  But wasn’t DACA vulnerable to judicial review, as was DAPA, the Deferred Action for Parents of Americans program?

Yes, DACA was highly vulnerable to legal challenge. But Presidents have an independent responsibility to make sure the executive branch is not overstepping its powers. The Constitution imposes a constitutional obligation on the President to “take care that the laws be faithfully executed.”

Can you tell us about United States v. Texas and how it relates to DACA?

The Texas case involved an order issued by President Obama on behalf of a larger and different class of person unlawfully present in the United States, but the legal arguments were essentially the same as there are with DACA. The Court of Appeals in the Texas case concluded that the DAPA order exceeded presidential power, and the Supreme Court affirmed by an equally divided vote. DACA presents the same legal issue.

What are the potential legal actions that might be taken at this point, if any, regarding DACA?

Creative lawyers may come up with a challenge to President Trump’s revocation of DACA, but it is hard to imagine what it would be based on. That is one problem with unilateral executive action. What is done by one president by the stroke of a pen can be undone by the next president.

President Obama’s lawyers defended his actions as an exercise of prosecutorial discretion. Why was that not correct, or was it?

The DACA and DAPA orders went well beyond the exercise of prosecutorial discretion. They purported to give their beneficiaries a form of lawful presence, entitling them to work permits and a variety of government benefits. Prosecutorial discretion means the executive will not take legal action against a law breaker in a particular case; it does not make the conduct lawful. So the answer: No.

Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. He served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit (2002-2009) before joining the faculty at Stanford.