Posted by Curt on 31 January, 2014 at 12:46 pm. 4 comments already!



I’ve said it before but it’s worth repeating: If you want to know what O thinks he can do unilaterally versus what he thinks simply must be handled by the legislature, you’re better off reading polls than reading law books. He went to war in Libya without consulting Congress because he thought, basically correctly, that there’d be no public backlash to an operation that involved no American boots on the ground. Two years later, boxed in by his own dopey “red line” rhetoric on Syria and facing a potentially messy intervention with no good guys for the U.S. to aid, he decided magnanimously to consult Congress before attacking. Immigration is the same thing in reverse. Two years ago, with the election just months away and his base watching, he decided he could issue a de facto amnesty for DREAMers by ordering DHS to exercise “discretion” in removing young illegals. Today, with fears of a backlash during the midterms if he went ahead and did the same thing for the rest of the illegal population, he’s decided that immigration reform can and must be addressed by Congress. Whether that position will hold or whether he’ll have yet another change of heart about his executive authority after the election, only he knows.

War and immigration are two cases, though, in which he’s exercising power that he arguably doesn’t have. Are there any cases where the opposite is true, i.e. he pretty clearly does have the power to act unilaterally but insists that his hands are tied until Congress does something? Why, yes: On marijuana, as Jacob Sullum explains. Generally speaking, the president can lawfully act by executive order if he’s acting under a power granted to him by the Constitution or a power delegated to him by Congress.

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