I am sympathetic to the desire of Senator Rand Paul (R., Ky.) to invalidate President Obama’s promised executive order conferring amnesty on millions of illegal aliens. And, like most of his fellow Republicans, and maybe even some Democrats, Senator Paul wants to believe Congress has the power to stop the president short of impeaching him. Nevertheless, his suggestion that lawmakers have the power to void presidential action simply by directing the president not to take that action is wrong.
Senator Paul floated this idea in an interview with Sean Hannity on Monday. He purported to base it on the Supreme Court’s famous steel-seizure case, Youngstown Sheet & Tube v. Sawyer (1952), which he construes as holding that “the president cannot expressly do something that Congress is telling them [sic] not to do.”
In Youngstown, the justices invalidated President Truman’s executive order directing government agents to seize (and the Commerce Department to operate) American steel mills when a labor dispute threatened to disrupt supply during the Korean War. With due respect to Senator Paul — and recognizing that the time constraints of a short TV interview can make it very hard to outline a legal theory — Youngstown does not say what he seems to think it says.
First of all, Congress did not direct the president to do or refrain from doing anything in the steel-seizure case. Instead, Truman issued an executive order, the aggrieved companies sued, and the Court invalidated the order.
It is true that part of the rationale for invalidating the order was the absence of statutory authority for the president’s seizure of the mills. Senator Paul is obviously equating this statutory silence with an express congressional denial of seizure authority. That is a dubious proposition, to say the least. As illustrated by the various Youngstown opinions (including Justice Robert Jackson’s concurrence, which is better known than the majority opinion), it is often unclear what silence means: Sometimes it’s a green light, sometimes a red light, and sometimes . . . it is just silence.
Now, let’s consider the Supreme Court’s rationale more comprehensively. The justices invalidated Truman’s executive order because there was neither constitutional nor statutory support for it. In effect, the Court reasoned that, based on the peculiar facts involved, the president was usurping the legislative authority that the Constitution vests in Congress. Yet — and this is key — the Court did not hold that Congress has the power to tell the president what to do or not to do in all circumstances. Such a power, after all, would make Congress the supreme branch of government, rather than a co-equal branch.
Instead, as Youngstown makes clear, the president can take unilateral action where the Constitution gives him that power (e.g., the pardon power) or where Congress has conferred it by statute (e.g., sanctions laws against Iran that grant the president authority to waive the sanctions). The problem for Truman was that he could not find that sweet spot: (a) the Constitution gave him no seizure authority; (b) he was seeking to act in the realm of domestic commerce and labor relations that the Constitution entrusts primarily to Congress (as opposed to the foreign-affairs realm, which is principally entrusted to the president); (c) Congress had not given the president statutory seizure authority; and (d) to the contrary, Congress had considered and rejected giving the executive seizure authority in situations where labor disputes might create national emergencies.
When a president takes (or, as with Obama and amnesty for illegal aliens, is about to take) executive action, Youngstown teaches that the first question must be: What is the source on which the president is relying for his exercise of power?
This is why I have been arguing in recent columns (see here and here) that it is a mistake to think about Obama’s contemplated executive order as one undifferentiated whole. There are, instead, three components: (1) amnesty (or pardon) for prior unlawful conduct by illegal aliens; (2) prosecutorial discretion in the enforcement of law (including arrest and deportation); and (3) the conferral on illegal aliens of such positive benefits as work permits, certificates of dispensation from deportation, lawful status, and citizenship.
On (1) and (2), the president has plenary power. Lawmakers can pass all the sense-of-Congress resolutions they want. They can scold, cajole, or threaten lawsuits. But they can neither stop the president from issuing pardons nor force him to enforce the laws. The courts are equally powerless.
Congress can threaten to impeach the president if he abuses these plenary powers. It can use its power of the purse (or threaten to use it) in ways that could bend the president’s will. The Senate can similarly refuse to consider presidential nominees for the bench or high executive posts, or threaten to do so. But as long as he remains in power, a president who is hell bent on unjustifiably pardoning large classes of lawbreakers and on refusing to honor his oath to execute the laws faithfully cannot be stopped.
On (3), the president has no authority to confer positive legal benefits or any kind of lawful status on illegal aliens. Only Congress has the authority to do this. Here, however, we must distinguish authority from power.
Let’s say the president issues an executive order directing the Department of Homeland Security to create work permits for classes of illegal aliens he has decided to refrain from arresting, prosecuting, or deporting — and perhaps even to pardon. He has the power to do this as the official in charge of the executive branch; but he has no authority to do it — it would be brazenly lawless.
What then, though? Congress’s competing powers to check the president are not self-executing — lawmakers actually have to do something in order to stop the president’s lawless order. Do what? Congress’s options are powerful but not numerous. Moreover, they have political ramifications that politicians find risky — which is why Republicans prefer to take them off the table.
In theory, Congress could impeach the president, but removal by the required two-thirds Senate vote is inconceivable at present — and many commentators insist that this will not change, no matter how intensely unpopular Obama’s policies, and his imperious implementation of them, become. So Republicans understandably reject going down that road at this point.
In theory, Congress could refuse to authorize the funding necessary for the president’s lawless conferral of benefits on illegal aliens. To make that stick, however, Republicans would have to be willing to run the risks that (a) Obama would shut down the government rather than sign a budget that denied him the necessary funding, and (b) the shutdown would be unpopular, and Democrats and the media would succeed in persuading the public that Republicans were to blame for it. At present, Republican leaders maintain that these are risks they are not willing to take.
The third option is to huff and puff and . . . do nothing. That is the option President Obama is betting Republicans will take. Unfortunately, there is nothing in the Supreme Court’s Youngstown ruling that makes this a bad bet.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.