THE BLOG
11/18/2014 10:45 am ET Updated Jan 18, 2015

Obama's Executive Orders: Can We Talk?

As Washington leaders charge headlong into a clash over President Obama's plan to issue executive orders on immigration, can we take a minute and talk about what executive orders are?

Far from being an "unconstitutional" or even "blatantly unconstitutional" power grab -- much less an impeachable offense -- Obama's executive orders are defined, and confined, by the limitations of such presidential issuances as they have existed for over 200 years.

First, let's be clear on what an executive order is, and is not. It is a legal issuance that has the force of law. While the power is not expressly granted, it is implied from the president's "executive Power" and from the charge to "take Care that the Laws be faithfully executed." Both are found in the Constitution's Article II.

This power, however, is sharply limited by two facts: it applies only to the Executive branch, and it must be based on prior legislative or constitutional authority. So, when Harry Truman ordered the racial integration of America's military forces in 1948 (anticipating by six years the Supreme Court's ruling that "separate but equal" in public schools was unconstitutional), it was the first important step in eliminating segregation. Yet it applied only to the military, a part of the government.

Second, executive orders are as old as the country. George Washington issued eight such orders. In fact, every president except William Henry Harrison (who held office for only a month before dying in 1841) has issued them. Based on the numbering system established in 1906, presidents have issued roughly 14,000 - yet the actual number is far larger, since before that time records of the orders were often not kept.

And third, executive orders can be superseded by a law passed by Congress, which has happened on various occasions, or a court ruling. In addition, newly elected presidents will sometimes issue new executive orders to alter or countermand those of prior presidents. Ronald Reagan's first executive order, to eliminate price controls on oil products, countermanded Jimmy Carter's executive order implementing such regulations. The first President Bush's executive order that restricted funding for groups providing abortion services or counseling abroad was repealed by Bill Clinton after he took office. The order was reinstituted under the second Bush, and repealed again by Obama. Such executive order ping pong is, however, the exception, not the rule.

This raises the political context of Obama's actions on immigration. In the face of Republicans' long intransigence on the issue, and as a way to make clear his continued relevance in his final "lame duck" two years, Obama's action a) alters policy without going to Congress; b) telegraphs to the Latino community his support, and that of his party; c) spurs Congress to act, whether out of resentment and anger, or a desire to actually fix a broken policy, and d) provides a bargaining chip the president can now use should Congress decide in favor of constructive engagement.

Finally, let's admit that any power can be abused, and maybe Obama will overstep his allowable authority (although his per year average of orders is the lowest since Grover Cleveland). If so, remedial legislation by Congress faces a certain veto. Yet court action is also possible. According to constitutional scholar Louis Fisher, the courts have struck down executive orders in at least seven instances. The earliest of these was 1803; the two most well-known are Truman's seizure of striking steel mills in 1952, and Clinton's order to prevent government agencies from contracting with private companies that replaced striking workers in 1996.

Yet given the enormous discretion over immigration decisions granted by Congress to presidents and agencies over the decades, Obama stands on firm footing to prioritize prosecutorial discretion. He also possesses ample precedent to protect selected groups from deportation, and statutory authority to grant work permits. Moreover, Obama's lawyers have reportedly worked assiduously to make sure that the orders survive the inevitable legal challenges. No, executive orders are not "the very definition of tyranny," any more than they echo "Cheneyite theories of executive power." While sometimes a friction point between the branches of government, they are best understood as the intersection of presidential policy priorities and efficient administration.