Is Obama’s Executive Order “Unconstitutional?”

Associate Justice Robert Jackson (1941-1954

Associate Justice Robert Jackson (1941-1954

I realize that as a Conservative Talk Radio Chat Show Host I am supposed to be screaming about the “unconstitutional” actions that President Obama is about to take in issuing an Executive Order on Immigration. Now I agree that the Presidents action would be ill-advised, wrong, and divisive instead of unifying. I also agree that he would be flying in the face of the electorate who clearly do not want such an Executive Order to be issued.

But does that make it “unconstitutional?”

The Court ruled some years ago (Youngstown Steel & Tube v Sawyer), and indeed, Justice Robert Jackson, created a test to determine if an Executive Order is outside the bounds of the Constitution. It goes like this:

  • Best case – Did Congress specifically allow the action to be taken by the President? (Think Authorization of Force, or War Powers Act). If Congress allowed the action to be taken, then the Executive Order is Constitutional.

Now Consider this line of debate: In 1781, Congress specifically formed the Department of the Treasury, under the Executive Branch. In 1891, Congress decided that the Federal Government would now oversee Immigration and thus specifically established a Commissioner of Immigration in the Treasury Department, and in 1933, moved that Commissioner to a new Department of Immigration and Naturalization that answered to the President as a cabinet member. Later INS would become ICE, but remain under the Executive as specifically assigned by Congress. So… did the Congress tell the President – any President – to oversee matters of Immigration? One would have to argue that both Reagan and Bush saw that as the case when they each issued Executive Orders dealing with Immigration issues.

  • The Middle Case – Is it “unclear” as to which branch of the Government has the authority to act on the given issue?

Again, the Constitution says (Article 1, Section 8, Cause 4) that Congress “shall have the power to establish an uniform rule on Naturalization.” So did Congress exercise that power by establishing the Departments listed above?

  • Worst Case – Has Congress Specifically Said “NO” to the Executive Action?

Well… has Congress voted to stop the President from carrying out the Executive Order? Speaker Boehner has said it would “poison the well,” but that is not a Congressional vote to say “No.”

So given those facts, and the long history of Executive action by Presidents from Washington to Obama, can one actually say that the proposed Order is “unConstitutional?”

Now again, I am NOT arguing the “rightness” of the order. Again, I think that it is a bad idea and it is little more than playing politics with immigration. But is it “unconstitutional?”

Based on precedent, probably not.


About FTB1(SS)

Plausibly Live is the Official Podcast of The Dave Bowman Show. From 2007 to 2015, Dave was the host of KFIV’s “Afternoons Live” (Later “The Dave Bowman Show”) and the Central Valley’s go-to man for insightful and entertaining analysis of the day's news and events. In 2015, Dave left radio to raise his son and helped to launch the Podcast 99 network (, which features voices and topics from all around the area, the nation, and the world, on a variety of subjects. Re-launching his own show as a podcast, Dave continues his look at the world around him, now without the constraints of terrestrial radio, but still with his eclectic mix of history and common sense. The primary feature element of Plausibly Live is Constitution Thursday, which since 2010 has been a weekly look at the history and impact of the US Constitution. Dave is a US Navy Submariner, a radio talk show host, father, baseball fan, avid reader and a frustrated writer. He has a passion for books, theology, submarines, coffee, tequila, 1970’s music (especially funk!) and is a ToTaL Star Trek geek. Dave being promoted to FTB2(SS) in 1986. Dave being promoted to FTB2(SS) in 1986. He was born in Oklahoma, grew up in Colorado, graduated from Ogden High School (Class of ’81) in Ogden, UT, served for eleven years in the US Navy Submarine fleet, was a Naval Instructor and as a Ballistic Missile Fire Control Technician, he achieved the rank of FTB1(SS) through sorcery and favoritism, but would have been happy staying an FTB2(SS) for life. He was trained as a targeting specialist and Battle Stations Missile Fire Control Supervisor aboard USS Michigan SSBN-727(G) and was trained on two Fire Control Systems, the Mk 98 Mod 0 TRIDENT and the Mk 88 Mod 1 POSEIDON. Later he served as a part of the Fleet Combat Training Center Dam Neck Auxiliary Security Force, which sounds impressive but was really just bait for Seal Team 6 and any Iraqi terrorists who happened to land on the beach in Virginia. He later attended Seminary in Atlanta, GA, then served as a pastor for five years before realizing the massive error of his ways. He then worked in non-Profit management until 2006 when he was hired to do sports for a local talk radio show, eventually moving into the host position in September of 2007. In the fall of 2008, after years of questioning and study, Dave completed the process of conversion to Judaism. In 2009 Dave married Cami, and in 2010 they were blessed with their son, Benjamin, to go along with four daughters, one son-in-law and three grandchildren. In the summer of 2017, Dave and Cami relocated “back home” to Silverdale, WA, where Dave had been stationed when they first met in 1985. From September 2007 to January 2015 Dave was heard each weekday from 3pm to 6pm (Pacific) on Power Talk 1360AM & 1280 in Modesto & Stockton, CA. Today, you can hear his Podcast Show, Plausibly Live, on The Dave Bowman Show website or on The Podcast 99 Network Page.

Posted on November 18, 2014, in Art 1 Sect 8, Article 1, Naturalization and tagged , , , , . Bookmark the permalink. Leave a comment.

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