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Arizona State University Law Professor: Presidential Orders Date Back to Founders

PHOTO: President Obama is not unlike his predecessors, dating back to the beginning of the Republic, in using a presidential order to accomplish a goal. Photo of George Washington courtesy of the U.S. Library of Congress.
PHOTO: President Obama is not unlike his predecessors, dating back to the beginning of the Republic, in using a presidential order to accomplish a goal. Photo of George Washington courtesy of the U.S. Library of Congress.
November 25, 2014

TEMPE, Ariz. - President Obama's executive action on immigration is being compared by some to the act of an emperor or king, but presidents have been issuing executive orders in some form since the era of the Founding Fathers.

Paul Bender is a law professor at the Sandra Day O'Connor College of Law at Arizona State University. He says an executive order doesn't create new law, but can provide direction for the enforcement of existing law - as is the case, he says, with Obama's immigration action.

"Does that make him an emperor? A king? I wouldn't think so," says Bender. "All it is, is failure to enforce a law that's not being enforced. And they're trying to regularlize that failure, trying to structure it, so that people know what's going on."

Obama is delaying deportation for several million unauthorized immigrants whose children are citizens.

According to the American Presidency Project at the University of California Santa Barbara, Obama has issued 193 executive orders to date. President George W. Bush issued 291 executive orders, President Clinton issued 364, the first President Bush issued 166, and President Reagan issued 381 executive orders.

Bender adds that Obama's immigration action should withstand legal challenges, such as the lawsuit filed late last week by Maricopa County Sheriff Joe Arpaio.

"Normally, the only people who can challenge the constitutionality of government action are people who are directly affected by it," says Bender. "The fact that you disagree with it is not a ground for having standing. So it's hard to think of somebody who is directly, adversely affected, by this order."

Arpaio's lawsuit claims Obama's executive order on immigration violates the U.S. Constitution and will "create a radically new and different regime of immigration law and regulation."

Troy Wilde, Public News Service - AZ