Alberto Gonzales: President’s Inherent Powers Justifies Unilateral Immigration Reform

August 12th, 2014

In USA Today, former Attorney General and current Bellmont College of Law Dean Alberto Gonzales, writes that President Obama is justified in taking unilateral executive action to implement immigration reform based on his inherent executive powers.

I support the President’s commitment to address this issue provided his actions are consistent with his duty under the Constitution to faithfully execute our laws. Determining the limits of the president’s inherent power to act in the absence of either an express constitutional or congressional grant of authority is one of the most difficult challenges in constitutional law. In part, this is because our courts have beeninconsistent in defining the scope of the President’s inherent authority.

Some constitutional scholars argue that the president has no inherent power since this would be inconsistent with the concept of a Constitution intended to create a federal government of limited power. Others believe in an expansive inherent power that allows the president to act as the public needs demand provided there are no express constitutional prohibitions. Still others believe, as I do, the scope of the president’s inherent power lies somewhere along the spectrum between these two extremes.

What is clear, however, is that the courts have generally been inclined to defer to the executive’s discretion in executing the law based upon competing priorities and budgetary constraints. Furthermore, often the courts refuse to even hear cases that present a political question. Thus, disputes over allocation of power between the elected branches are frequently resolved in the public arena, not the courts.

Gonzales is right that the only authority Obama can rely on to extend legal status to millions would be his inherent executive powers. I haven’t seen a compelling argument that such a broad power was delegated to the President by Congress. If so, why would he have sought legislation in the first place? He would need to supplement his authorized powers with his inherent powers. As I discuss in Gridlock and Executive Power, the President’s authority is at its “lowest ebb,” as Congress expressly rejected his proposal.

But this is not the argument the Administration would want to make. The Obama Administration has strenuously objected to the type of inherent powers argument commonplace in the Bush Administration. Recall how quickly after the Bergdahl swap, the Administration backed off Secretary Hagel’s “inherent authority” justification.

There must be some serious cognitive dissonance in the White House that their plan must be based on the same inherent executive power they railed against for years.

Also, Gonzales totally mischaracterized Zachary Price’s article, as he in no way suggested that the President “has no inherent power.”