Can the president rewrite federal laws? Can he alter their meaning? Can he change their effect? These are legitimate questions in an era in which we have an unpopular progressive Democratic president who has boasted that he can govern without Congress by using his phone and his pen, and a mostly newly elected largely conservative Republican Congress with its own ideas about big government.
These are not hypothetical questions. In 2012, President Obama signed executive orders that essentially said to about 1.7 million unlawfully present immigrants who arrived in the U.S. before their 16th birthdays and who are not yet 31 years of age that if they complied with certain conditions that he made up out of thin air they will not be deported. In 2014, the president signed additional executive orders that essentially made the same offer to about 4.7 million unlawfully present immigrants, without the age limits that he had made up out of thin air. A federal court enjoined enforcement of the 2014 orders last month.
What’s going on is the exercise of authoritarian impulses by a desperate president terrified of powerlessness and irrelevance, the Constitution be damned. I say “damned” because when the president writes laws, whether under the guise of administrative regulations or executive orders, he is effectively damning the Constitution by usurping the powers of Congress.