A separation of powers

In November of 2014, President Obama issued a series of executive orders to allow roughly 5 million immigrants currently in the country illegally to avoid deportation and, instead, receive work permits. The president justified his action as a legitimate reaction to our nation’s “broken” immigration system and Congress’ failure to do anything about it.

Texas and 25 other states — including Nevada — sued in response, and a federal court blocked the proposed actions. The matter made its way to the U.S. Supreme Court on Monday and it was heartening to see during oral arguments that some justices framed the issue as less about immigration and more about technical issues revolving around a president’s power to unilaterally alter existing law.

The president’s plan would allow as many as 5 million people — people who have lived illegally in the United States at least since 2010, have no criminal record and have children who are U.S. citizens or lawful permanent residents — to enter a program that would shield them from deportation and supply them with work permits.

President Obama argued that his actions would “bring more undocumented immigrants out of the shadows so they can play by the rules, pay their full share of taxes, pass a criminal background check and get right with the law.” In response to members of Congress who challenged his authority to take these steps, he responded, “I have one answer: Pass a bill.”

The recent death of Supreme Court Justice Antonin Scalia means a 4-4 split on the issue is a possibility, leaving the lower court ruling against the administration intact. That outcome seemed even more likely on Monday, as both Chief Justice John Roberts and Justice Anthony Kennedy aggressively questioned U.S. Solicitor General Donald Verrilli, who argued the administration’s position.

Justice Roberts, justifiably concerned with the lengths the government was going to to defend the president’s actions, pressed Mr. Verrilli, “Under your argument, could the president grant deferred removal to every unlawful — unlawfully present alien in the United States right now?” Justice Kennedy noted that the proposed actions make it seem as if “the president is setting the policy and Congress is executing it.” That, he said, is “just upside down.”

He’s right. Congress makes our laws, not the president. President Obama’s wishes, frustrations or good intentions can’t justify the executive branch’s usurpation of congressional power.

While building a wall isn’t the best solution to fixing our immigration problems, reinforcing the barrier between the president’s aspirations and the Constitution is more than appropriate.