That still leaves the question of whether Obama is exceeding his authority by issuing high-impact executive orders. On immigration, at least, most legal scholars say the law gives the president broad discretion — especially on how to prioritize enforcement efforts, which is how officials are describing Obama’s impending decision.
One White House aide pointed me to an unexpected authority: former Atty. Gen. Alberto Gonzales, who served under President George W. Bush. “The courts have generally been inclined to defer to the executive’s discretion” when it comes to enforcing immigration laws, Gonzales wrote in USA Today last week.
It will matter, of course, how broad Obama’s order is, and whether it stretches the idea of “deferred action” to create a new category of long-term residency permit.
But it won’t be much of a threat to the Constitution. It will be an executive order, issued in broad daylight. If members of Congress don’t like it, they can pass a law to overturn it. They can even sue Obama, as House Republicans say they will over the president’s selective implementation of his healthcare law. Nothing wrong with that. Litigiousness, after all, is the American Way.