The Washington Post on Executive Power

The Washington Post Editorial Board: Frustration over stalled immigration action doesn’t mean Obama can act unilaterally.  From the conclusion:

The right response to the collapse of the U.S. immigration system is for Congress to fix the law. The House had a vehicle to do just that by taking up the legislation passed by the Senate last year. But it does not follow that Congress can be ignored based on its failure to act. The right response to lawmakers who won’t solve the immigration mess is to replace them with ones who will.

Via Josh Blackman, who outlines his views here.  Also via Josh Blackman, at Slate, Reihan Salam: Gridlock is Good —  When House Republicans stand in the way of President Obama, it means they’re taking their constitutional duties seriously.

And a further related post from Josh Blackman: 1992 OLC Memo: President, In Face of Senate Filibuster, Should Not Use Unilateral Authority to Change Unambiguous Law.

In the New Republic, Eric Posner has a somewhat contrary view: Obama Is Legally Allowed to Enforce—or Not Enforce—the Law — with which, surprisingly, I agree a good bit (more on that later).  But there’s this:

If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.

Wrong.  Congress has no “obligations under the Constitution” to pass laws (subject perhaps to a few specific exceptions that aren’t relevant to immigration or anything else that Professor Posner is talking about).  Congress has the power to pass laws.  But it also has the power to decide not to pass laws.  That Congress fails to pass laws that President Obama or Eric Posner thinks are needful only proves that Congress has a different view, not that something subtlely unconstitutional, justifying extra-constitutional solutions, is afoot.

• Author
• Recent Posts

Michael D. Ramsey

Michael D. Ramsey is Professor of Law and Director of International and Comparative Law Programs at the University of San Diego School of Law, where he teaches and writes in the areas of Constitutional Law, Foreign Relations Law and International Law.He is the author of THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS (Harvard University Press 2007), the co-editor of INTERNATIONAL LAW IN THE U.S. SUPREME COURT: CONTINUITY AND CHANGE (Cambridge University Press 2011), and author or co-author of numerous articles on foreign relations law in publications such as the Yale Law Journal, the University of Chicago Law Review, the Georgetown Law Journal and the American Journal of International Law.

Latest posts by Michael D. Ramsey (see all)

• Thoughts on Moore v. United States - September 21, 2023
• Andrew Coan & David Schwartz: Interpreting Ratification - July 28, 2023
• Charles Pinckney and Moore v. Harper - November 10, 2022