President Barack Obama has found himself in somewhat of a constitutional quagmire: the president claims he does not have the authority to approve the Keystone pipeline until it makes its way through the “independent process” of the State Department, yet he knows he has the authority to grant de facto legal status to illegal immigrants via executive order.
This strange juxtaposition of events — a vote on Keystone in Congress just days before the president issues his executive order — has forced Obama to do some fancy political footwork. Amid the president’s political posturing, he has vividly illustrated his muddled, inconsistent constitutional philosophy – a troubling situation for a self-proclaimed “constitutional law professor.”
After the Democrats’ routing loss in the midterm elections, Obama was asked whether he would sign a bill from the new Congress to authorize the construction of the Keystone pipeline. He told reporters, “[O]n Keystone, there’s an independent process. It’s moving forward. And I’m going to let that process play out.”
In other words, Obama tacitly told Congress he will likely veto Keystone-authorizing legislation since there is an “independent process” for approving the pipeline. That process resides in the State Department, which has permitting authority to approve the pipeline since it cuts across international borders. But this “independent process” the president professes so much faith in has taken six years thus far and is currently halted at the direction of Obama.
Despite the president’s repeated claims that Keystone need undergo this “independent process,” a 2012 Congressional Research Service report stated, “legislation related to cross-border facility permitting is unlikely to raise significant constitutional questions.”
Moreover, not only does Congress have the power to pass the pipeline, Congress has preeminent power: “Article I, Section 8 of the Constitution authorizes Congress to ‘regulate Commerce with foreign Nations.’ Whereas any independent presidential authority in matters affecting foreign commerce derives from the president’s more general foreign affairs authority, Congress’s power over foreign commerce is plainly enumerated in the Constitution, suggesting that its authority in this field is preeminent.”
History is also on Congress’ side. Authorizing transatlantic cables, and now pipelines, has been within Congress’ purview of power since the 1800s; meanwhile, this “independent process” didn’t come about until the promulgation of Executive Order 11423 in 1968.
In short, Congress and the president clearly have the power to approve Keystone via legislation. Nevertheless, Obama retreats into a posture of powerlessness to avoid making a tough decision that could anger his environmental base.
But in a stunning turn of hypocrisy, while the president continually defers to the “independent process” on Keystone, he vows to act unconstitutionally in the field of immigration.
Article II, Section 3 of the Constitution mandates that the president “take Care that the Laws be faithfully executed.” This duty includes enforcing the Immigration and Nationality Act of 1952, an act of Congress that Obama intends to nullify this week by an executive order that would grant de facto legal status to five million illegal immigrants.
The president claims he has the power to do this through prosecutorial discretion. Prosecutorial discretion, stated simply, is the discretion given to the Justice Department in deciding which cases to prioritize and prosecute given the federal government’s limited resources. It is not, however, a means for the executive to repeal the laws of Congress. Such a power would be extra-constitutional at its core.
A nonpartisan 2013 Congressional Research Service report expressed similar reservations: “While the executive branch’s prosecutorial … discretion is broad, it is not unfettered, and particular exercises of discretion could potentially be checked by the Constitution … A policy of non-enforcement that amounts to an abdication of an agency’s statutory responsibilities could potentially be said to violate the Take Care Clause.”
Obama himself even recognized these limitations in March 2011: “With respect to the notion that I can suspend deportations through executive order, that’s just not the case because there are laws on the books… [F]or me to simply, through executive order, [to] ignore those congressional mandates would not conform with my appropriate role as president.”
And again in February 2013: “I’m not the emperor of the United States. My job is to execute laws that are passed, and Congress right now has not changed what I consider to be a broken immigration system.”
Nonetheless, Obama is categorical in his decision to grant legal status to millions via executive order, claiming that he has waited long enough for Congress. At the same time Obama levies this unprecedented authority in the field of immigration, he hides behind a relatively new six-years-in-waiting “independent process” on Keystone.
During the 2008 campaign, Obama repeatedly reminded us that he was constitutional law professor. For someone who considers himself a constitutional expert, the high-minded scholar residing at 1600 Pennsylvania Avenue seems mightily confused.