Did the President Fail to Take Care in his Immigration Executive Order?

By Sanjay Dureseti
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Sanjay Dureseti is a freshman at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

On November 20th, 2014, President Barack Obama announced his enactment of executive orders meant to drastically overhaul the immigration system of the United States. In circumventing the legislative authority of the Republican-controlled Congress, Obama expanded a 2012 program known as Deferred Action for Childhood Arrivals (DACA), which will now allow over 1.2 million young undocumented immigrants to apply for deportation deferrals and work permits. [1] An additional 4 million undocumented residents, of all age groups, will also be eligible for work authorization and federal authorities will shift the focus of deportation to undocumented felons.

Congress unsurprisingly balked at the President’s decisions, with the majority party threatening both political and legal retribution. Along with declaring Obama’s actions a “brazen power grab,” Republican lawmakers declared the President’s overhaul as unconstitutional and as an imperial overstep of executive power. Over a year later, Congress has made good on its promise to challenge the President on legal ground. The Supreme Court recently announced that it would address his executive actions and rule on their legality in their upcoming judicial term. [2]

The administration’s legal team will likely argue that the President was simply acting on precedent, following the legislative norms that his predecessors had set before him. In 1986, conservative icon Ronald Reagan acted independently in expanding amnesty provision that granted legal status to over 3 million undocumented immigrants. In 1990, President George H.W. Bush allowed 40 percent of unauthorized residents to avoid deportation and obtain work permits. [3]

In a legal sense, the administration will also rely on the executive’s power of prosecutorial discretion under immigration law. Codified statutes already allow the President to prevent deportations and to offer permanent residence to young minors brought into the country. They will argue that the President’s actions are simply an extension of this established executive authority.

The Court, however, provided a new wrinkle in the case by asking for arguments about Obama’s possible violation of the “Take Care” clause, located in Article II of the Constitution. [4] The clause imparts the President with the duty to “take care that the laws be faithfully executed,” a phrase buried in a section that enumerates the responsibilities of the President. While its wording presents some ambiguity, scholars concur that it requires the executive to enforce the law to its full extent, regardless of his agreement with its principles.

The history of the “Take Care” clause begins with the origins of American independence. As they convened after their victory in the Revolutionary War, the delegates of the Constitutional Convention were determined, above all, to prevent the installation of another monarchy. After the creation of the three branches of government, the delegates were intent on increasing the accountability of the executive. While the “Take Care” clause offers the President a fair amount of constitutional flexibility in enforcing the law, it does not endow the power to dispense with it entirely.

​Given the Court’s documented reluctance to interpret the “Take Care” clause, President Obama now faces thorny constitutional questions of executive overreach. The upcoming ruling will address very fundamental concern that has so often gripped the focus of American politics: what is the difference between a president and a king?


[1]”What is President Obama’s Immigration Plan,” New York Times, November 20, 2014, http://www.nytimes.com/interactive/2014/11/20/us/2014-11-20 immigration.html.
[2] Wheeler, Lydia, “Obama faces reckoning on immigration at Supreme Court,” The Hill, January 25, 2016, http://thehill.com/regulation/court-battles/266771-obama-faces-reckoning-on-immigration-at-supreme-court.
[3] Davis, Julie Hirschfeld, “Obama’s immigration decision has precedents but May Set a New One,” New York Times, November 20, 2014 http://www.nytimes.com/2014/11/21/us/politics/obamas-immigration-decision-has-precedents-but-may-set-a-new-one.html
[4] “Article II of the United States Constitution,” Legal Information Institute,  https://www.law.cornell.edu/constitution/articleii

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