When I was a kid, Saturday morning TV shows were often interrupted by something called "Schoolhouse Rock." These were short cartoons that taught us about history, grammar or social science, and one of the most well-known was entitled "I'm Just a Bill" (If you haven't seen it, check it out on YouTube. It has more than 2 million views). In it, the anthropomorphized Bill - the subject of the title - is sitting on Capitol Hill, waiting and hoping to be signed into law. Bill explains all he had to go through to get to the current stage: introduction by a local Congressman, submission to Congress, fighting in committee, then a repeat in the other chamber of Congress. Finally, after all that, Bill relates that he might reach the President's desk, where he could be signed into law or vetoed - and then he might have to begin the full legislative journey anew.
Like a generation of other children whose introduction to civics came during a cartoon break with "Schoolhouse Rock," I learned, in a very general and basic way, what it took to create a law in the United States.
President Obama, however, would have us believe that all it takes is a president, a pen and a phone.
It doesn't, of course. However, it appears our president (himself once a Constitutional lawyer) has become so frustrated that he has forgotten this fact. Congress has done its job in representing the people, as polls show that much of the public is not in favor of the DREAM Act as presented. In response, the president has searched for alternative methods to effectuate change that so far have included executive orders, memos and administrative moves.
According to the American Presidency Project at the University of California, Santa Barbara, President Obama has passed 183 executive orders. This is fewer than George W. Bush (291) or Bill Clinton (364), but it's the quality rather than the quantity of the orders that makes the difference. Alarmingly, President Obama has used executive orders and memos to suspend more than 40 existing laws that Congress was within its Constitutional right to pass - and that he swore to uphold by taking the Constitutional Oath of Office. This is unprecedented, but there's word now out of Washington, D.C., that within days - perhaps even on Labor Day weekend - the president intends to push his immigration overhaul by way of a sweeping executive order.
Congress has already obtained permission to sue President Obama over his use of executive orders. Such a suit would rest on the premise that he has violated the separation of powers between the executive and legislative branches of the federal government, thereby diminishing Congressional power. And if a Texas judge is correct, and Obama acts in a manner that initiates a Constitutional crisis, such a lawsuit could extend further than many have projected.
It's worth recalling that nine Immigration and Customs Enforcement agents sued Homeland Security Secretary Janet Napolitano over the 2012 directive barring ICE agents from deporting unlawful immigrants under certain circumstances. This directive was viewed by many as nothing more than a way for President Obama to enact his DREAM act without having to go through the formal legislative process, which had previously failed.
The federal agents filed suit in the Northern District of Texas federal court, alleging that the directive compelled them to violate federal immigration laws (among others) and that it violated the Constitution. While the case was ultimately dismissed on jurisdictional grounds, Judge Reed O'Connor's opinion on the matter should give President Obama and his advisers pause about using executive orders to legislate, especially regarding immigration issues.
On April 24, 2013, in Crane, et al. v. Napolitano, Judge O'Connor wrote an opinion that touched upon the scope of executive power when it comes to immigration (although the case was not decided on this issue).
In his ruling, Judge O'Connor cited a number of Supreme Court decisions that clarify the high court's position on these issues. Among these, he cites Judge Robert H. Jackson's concurrence in the case of Youngstown Sheet and Tube Co v. Sawyer, noting that when the Executive "takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb." Justice Jackson went on to say, "Courts can sustain exclusive [executive] control in such a case only if that particular subject matter is within [the Executive's] domain and beyond the control of Congress."
Immigration, Judge O'Connor noted, is within the control of Congress per Article I of the Constitution. It is well established that Article II of the Constitution puts limits on the Executive Branch. Section 3 of that Article sets out the constitutional obligation of the executive to ensure that laws are faithfully executed and it also makes clear that the executive does not have the power to make law.
In further support of O'Connor's position that immigration law falls solely within Congress' domain, he cites Supreme Court case Harisiades v. Shaughnessy (1952), in which Justice Felix Frankfurter wrote: "Conditions for entry of every alien.... and the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of Congress...."
Judge O'Connor ultimately ruled that the ICE agents were likely to succeed in their case, but he deferred a final decision until an administrative issue over the matter of standing has been briefed. After the issue was briefed, the case was dismissed for lack of jurisdiction. But in his esteemed opinion, Judge O'Connor stressed that the plaintiffs were likely to succeed on the merits of their claim.
A president walks a difficult tightrope. He is granted the right of discretion and can use it - quite broadly - to impact the way laws are carried out. But it's clear that he cannot make laws - especially in areas such as immigration, which are recognized as part of Congress' responsibility. Justice Frankfurter's concurrence in Harisiades made the point succinctly: "...Whether immigration laws have been crude and cruel... the responsibility belongs to Congress."
President Obama must be very careful not to tumble off his tightrope in the coming months. Contrary to his implications, he cannot make law by virtue of a pen and a phone. The Constitution simply does not allow it.
On that issue, and like so many others, "Schoolhouse Rock" got it right.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heatheris also anational television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
