This week, President Obama announced that he was delaying the release of a report on the extent of his executive power to stem immigrant deportation. The news was disappointing for the many Americans who’ve been waiting years for fixes to the nation’s broken immigration system. It was particularly crushing for the many activists who’ve put their lives on the line to stop mass deportations. And it sparked what’s just the latest round of questions about whether being The Leader of the Free World is the sort of all-powerful throne that some have presumed.
Given the post-9/11 era we’re in–where the unitary executive theory of the presidency is ascendant, while the legislative efficacy of Congress is in stagnation–questions about the power of the POTUS are looming, especially for issues that people of color hold dearly. For issues like stopping deportations, raising the minimum wage, climate change and lately, reparations, people wanna know how come Obama can’t just do the damn thing? Why can’t he just solve these things with the stroke of his executive pen?
Looking at what authority the president has beyond Congress, especially in light of Congress’ legislative inaction, Obama has basically three major instruments to work with: executive orders, presidential proclamations and presidential memoranda. The executive orders pack the biggest punch, but aren’t as strong as actual federal laws. In fact, they’re not even mentioned in the Constitution. But they can still get some things done. Obama’s used them this year to up the minimum wage for federal contract workers–a big-impact step, though helpful to a small segment of the population–and to move on climate change– smaller impact steps, but effective for the nation broadly.
What about for big-ticket items, though? Like reparations. Ta-Nehisi Coates has made a rather compelling argument for redress for African Americans‘ historical suffering under racist laws in The Atlantic. Our own Imara Jones took the case further. Neither are the first to make the argument. Rep. John Conyers of Michigan has for the last 25 years been trying to get Congress to just study the issue, but to no avail. So what can President Obama do about it?
Well, he can’t just cut the check, for sure. But there are some things he can do to advance the matter, said Harvard Law Professor Randall Kennedy, author of the books "For Discrimination: Race, Affirmative Action, and the Law" and "The Persistence of the Color Line: Racial Politics and the Obama Presidency."
Obama "could certainly have a presidential commission study the issue," Kennedy told me. "President [Harry] Truman commissioned a committee to look into civil rights in 1948 and that proved to be a very important investigation."
Obama has created commissions and task forces during his terms to investigate the BP oil disaster and voting problems, as just two examples. Both bodies issued recommendations for how funds and resources might be administered in those cases. But none of the recommendations are legally binding. As Christopher Ingram illustrates in the following infographic from his WonkViz blog, Obama’s record so far in issuing executive orders is pretty sparse compared to past presidents.
What about the deportations? What exactly stops him from just waving the POTUS wand to help bring the 11 million or so immigrants out of the shadows so they can live in peace? As Nora Caplan-Bricker reported recently in The New Republic, the power for that kind of blanket amnesty rests solely with Congress. Since Congress has been flubbing progress on comprehensive immigration reform legislation–a bill passed in the Senate, but the House won’t take it up–Obama can at least slow deportations for certain immigrants. He used his presidential authority to do that in 2012, when he offered "deferred action" for DREAMers, the children of immigrants. Some legal experts believe he can go further.
"I think there’s little serious question that the administration has broad discretion in almost every aspect of the deportation machine," Yale Law School professor Michael Wishnie told Caplan-Bricker.
One of Obama’s biggest obstacles might be himself. In 2011, he said during a Univision town hall discussion,"With respect to the notion that I can just suspend deportations through executive order, that’s just not the case."
While Obama is uncertain about his anti-deportation powers, he seems to have little doubt about his authority to get his kill on and get his war on. The broad warmaking powers that Congress granted after 9/11 create a different context in this realm of policy, but Obama has used his throne to authorize unilateral military action in Libya and threaten as much in Syria, and to kill Anwar al-Awlaki, a U.S. citizen abroad who was accused of planning to attack the nation.
But there’s only so far he can ride such authority, and he can be checked. Congress still holds the strings to funding and can derail any executive order by simply refusing to pay for it. As explained in an April congressional study on the matter, "Congress has used its appropriations authority to limit the effect of executive orders by denying salaries and expenses for an office established in an executive order, or by directly denying funds to implement a particular section of an order."
In fact, the president has extremely limited access to the nation’s bank account. As Brookings Institute Elaine Kamarck wrote in January:
"The President faces constraints that almost no private sector CEOs face. He can’t decide to move some money from a new fighter plane over to the education department. In fact, even within programs his ability to move money is quite limited and very often any significant shift in funds–reprogramming is the formal term–needs permission from Congress."
Welp, there goes reparations.
Meanwhile, the verdict has yet to come in on what he’ll finally do on deportations. Obama says he’ll say by the end of summer. Ultimately, his legacy will be determined by what change his relatively few executive orders actually bring in Americans’ lives. But as with many issues throughout time, change has been most felt when realized by the people, not by the president.