The Supreme Court Decision That Could Change the Presidency

by Diane Dimond on January 25, 2016

SCOTUS Justices

Supreme Court Justices Could Give the White House Massive New Power

It will be a monumental decision either way. One that has the potential to shape national politics and public policy for decades to come. And don’t be fooled into thinking it’s just about U.S. immigration policy. It is much bigger than that.

The U.S. Supreme Court has agreed to decide whether it is legal for a sitting president to issue an executive order that changes existing law, thus by-passing Congress, the branch of government empowered to make the laws.

The case at the center of the dispute has to do with President Obama’s unilateral action, taken in late 2014, to shield from deportation up to 5 million immigrants living here illegally. Mr. Obama maintains he acted – legally – under his own authority because Congress had done nothing to reform the broken immigration system.

Questionable Executive Orders Challenged

Questionable Executive Orders

26 states quickly challenged the idea that an American president can simply issue an independent decree that is that far reaching. To date, the states have won every round in court. Now, the U.S. Supreme court will hear arguments and a ruling is expected in June.

This column isn’t about the nation’s immigration mess. It’s about the highest court in the land deciding how much power a president should be able to wield. This should be of vital interest to all citizens.

Every president issues executive orders. The question isn’t how many each president produces. The important thing is the content of the orders and whether they encroach on another branch of government’s authority.

If the high court decides against Mr. Obama it seems unlikely that any future president would try to unilaterally make sweeping new policy via executive order, be it on immigration or anything else.

Founding Fathers Instilled Checks and Balances

Founding Fathers Added Checks & Balances

On the other hand, if the justices decide in Mr. Obama’s favor the checks and balances the founding fathers insisted upon will be shattered. Succeeding presidents would have a green light to disregard one of the three main branches of government. The Executive Branch could bypass the Legislative Branch and do what they want via executive fiat. If there’s a dispute about an executive order the president would take his or her chances with the Judicial Branch.

This is exactly what’s happening now. Congress – those Senators and House members we voted to represent us in Washington — is out of it and the courts will decide whether President Obama overstepped his authority on the immigration issue — or not.

Frankly, with all the partisan obstinacy and lack of accomplishment in the U.S. Congress we probably should have seen this showdown coming.

If the Supreme Court upholds Mr. Obama’s action future presidents could order up a shift in any number of major issues and the citizenry would simply have to adjust.

A stronger, more omnipotent Internal Revenue Service? More secret internet and cell phone information gathering? Yep, the president could issue an executive order and it would be so. An increase in the minimum wage for a preferred group of workers? No vote from Congress needed. All it would take is a presidential executive order.

Court Challenges Are Hugely Expensive

Court Challenges Are Hugely Expensive

Certainly there would be the predictable and hugely expensive court challenges to each of these hypothetical actions. The biggest winners? The lawyers.

The expected timing of the Supreme Court ruling is vitally important. The decision is to be announced just a few weeks before the national conventions where democrats and republicans will nominate their presidential candidates. The last few months of this already divisive campaign will certainly feel the effects of the ruling.

As voters pick from among the candidates they should view their choice through the lens of the high court’s decision. Is their choice likely to go rogue, as a majority of states say President Obama has, and work around Congress instead of with it? If so, realize that means many more years of contentious and ineffective governance.

Perhaps the rogue scenario is okay with you. After all, if Congress isn’t going to step up to the plate maybe it’s a good thing to have a more powerful president to get things done. But that is, assuredly, not the system the framers of our U.S. Constitution had in mind. Three branches of checks-and-balances government has worked for more than 240 years.

It is not the system that’s broken. It’s who has been in charge in Washington – on both ends of Pennsylvania Avenue. We deserve better leadership.



LB January 25, 2016 at 12:05 pm

Hi –

Few thoughts:

There is a legitimate debate to be had here. But this statement is inaccurate and/or misleading: Mr. Obama maintains he acted – legally – under his own authority because Congress had done nothing to reform the broken immigration system.

The sentence implies that Obama claimed he can act on his own whenever Congress doesn’t act to fix something. In fact, the administration’s legal argument rests on the idea of prosecutorial discretion—the idea in U.S. immigration law that officials can use their own judgment to decide where to intervene. That seems like an important point to omit from the piece — and also takes away credibility from your statement that a decision in Obama’s favor at SCOTUS would mean Presidents would willy-nilly issue orders that change the law. Not all laws involve prosecutorial discretion.

Again, this is an issue worthy of robust debate. But it is important to accurately and credibly spell out the issue.

Diane Dimond January 25, 2016 at 3:18 pm

Thanks for your comment.

The Obama Administration has made it clear that they believe the president acted legally putting forth the executive order on immigration. Here’s a link for you to check:

And here is a line from within that story from The Hill: >> “The administration has argued that Obama acted within the law by using “prosecutorial discretion” to decide not to deport certain immigrants who do not pose a threat to public safety. ”

So, we probably agree that the President believed he was acting legally – else why would he issue such an order.
You also seem to take issue with my line that the President took action after being frustrated with the lack of action from the hill.
Really? You don’t think Mr. Obama is feeling such frustration? You don’t think he acted on immigration because Congress has done nothing? MSNBC disagrees with you:

>> “Rachel Maddow reviews the instances in which President Obama has taken executive action where Congress has refused or been unable to do the work of governing, and wonders who much he can do if Congress keeps its record-setting, do-nothing pace…”

(And for the record my column never said that “Obama claimed he can act on his own whenever Congress doesn’t act to fix something,” as you wrote)

Perhaps my line would have been more to your liking if I wrote:

“Mr. Obama maintains he acted – legally – under his own authority AND HE APPARENTLY TOOK ACTION because Congress had done nothing to reform the broken immigration system.”

I’ll keep your criticism in mind as I write future columns. ~ DD

LB January 25, 2016 at 3:40 pm

Thanks, Diane. I misread one of your sentences to say that Obama’s position was that his actions were legal *because Congress didn’t act*, i.e., that it was the lack of Congressional action that made his Order legal (rather than that he acted because Congress didn’t act, with “legally” describing the acting, if that makes sense). In any case, I do think the piece suggests (says) that if SCOTUS goes with Obama, future presidents will “do what they want,” be it on immigration “or anything else.” That suggests no limitation of there being a prosecutorial discretion issue. A ruling in favor of Obama would not indeed suggest any kind of Order on anything in the world were acceptable. In my humble opinion, a reference to Obama’s legal argument in this case and what kind of future cases that might or might not affect would have provided more accurate context.

Oh, and yes – I definitely believe he was frustrated! I didn’t mean to suggest otherwise.

Mimi Thomas January 28, 2016 at 5:08 pm

Excellent column today about the Supreme Court forthcoming decision on immigration. Obama’s three branches of government are “me, myself and I.”

Diane Dimond January 25, 2016 at 3:00 pm

Facebook Friend James McEvoy writes:

“If they don’t limit actions now and make sure all the future Presidents have to follow some kind of order, than we are really in for some bad times down the road and no matter what people vote on it won’t matter much at all. Very important decision to be made.”

Diane Dimond January 25, 2016 at 3:01 pm

Facebook Friend Mike Chimeri writes:

“Prior Obama era decisions have come down in the president’s favor. I expect this to, too.”

Diane Dimond January 25, 2016 at 3:01 pm

Facebook Friend Bill Voinovich writes:

“Going around congress to set policy is FINE…
Going around congress because YOU want something done, just to show them “I CAN” should be stopped…
Obama is DEFINITELY abusing that power, and if NOBODY in Washington is doing their jobs, maybe EVERY STINKING ONE OF THEM shold be forced into the UNEMPLOYMENT LINE…….
ALL of them are WORTHLESS…The only thing they know how to do with any regularity is BLAME EVERYBODY ELSE for being “childish & immature”, when in reality, ALL of them are childish & immature…
NOBODY is doing what’s right for the country, instead, setting PERSONAL AGENDA at the top of the list….
What happened to the REPUBLICANS PROMISE to STOP All the things DEMOCRATS were doing, “AS SOON AS WE GAIN A MAJORITY”?????

Diane Dimond January 25, 2016 at 3:02 pm

Facebook Friend Nancy Robel writes:

“Super relevant and well written. I don’t think a president should have that power. Shameful, and it solves nothing. But what do we do about this ineffective government agreeing on nothing? Something will break the gridlock and it probably won’t be good. But in case the politicians haven’t sat up and noticed, much of the citizenry is sick of them. That’s why someone like Trump is able to get in the mix.”

Diane Dimond January 25, 2016 at 3:02 pm

Facebook Friend Ken Bertucci writes:

“The system with built in checks and balances was put in place to stop this very thing from happening. For all of you who support what the president is doing, remember this; someday another president, who’s ideas you don’t agree with, will be in power. Be very careful what you wish for.”

Diane Dimond January 25, 2016 at 3:46 pm

Linked In Pal Charles Myhill writes:

“The USA should adopt the Westminster system. The country’s present model, clearly, is not functioning.”

Diane Dimond January 26, 2016 at 8:04 am

Twitter Pal DetectiveJones7 J writes:

@DiDimond An executive order is either constitutional or it isn’t. There’s no “expanding” involved.”

Diane Dimond January 26, 2016 at 8:04 am

Twitter Pal PierceWaterResq writes:

“@DiDimond The president should work with Congress when he she can but have options when gerrymandering brings things to a grinding halt”

Diane Dimond January 26, 2016 at 8:05 am

Twitter Pal dannyantwi1 writes:

“@DiDimond.Hope they make a non political decision, Obama is gone in a year with all the rd blocks this do nothing congress put in his way.”

Diane Dimond January 26, 2016 at 8:05 am

Twitter Pal StewartCherie writes:

“@DiDimond No. We need to establish term limits and new rules to force Congress to do their job.”

Diane Dimond January 26, 2016 at 8:05 am

Twitter Pal JoePalazzolo2 writes:

“@DiDimond Good article Diane; Don’t think the Founders put an “if-then” clause in the Constitution giving the President more power at times.”

Diane Dimond January 26, 2016 at 8:12 am

Linked In Connection Michael Sommermeyer writes:

“You hit the nail; so far, everyone has made this an immigration fight. If a President can change the rules, then I think we might as well eliminate public representation. Clearly, a lobbyist could just behoove the President to act. Any idea why we have a poll asking the President to pardon the subject of a reality show? If the President could sway with the masses we move from a system of balance to a system of tyranny of the majority. Of course, I’m just cynical enough to think this has already happened, but a decision in favor of Presidential-Fiat would make it sure.”

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