Final_document_final

Executive Action and Immigration Reform
- A study of how constitutional provisions of presidential power, “political time”, and presidential
precedent influenced the crafting and reception of the executive order on immigration issued by
President Obama on November 20, 2014.
M.A. Thesis
Amanda Hansen Bøllehuus
American Studies
August 28, 2015
Advisor: Jørn Brøndal
Center for American Studies, Syddansk Universitet
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Amanda Hansen Bøllehuus Executive Action and Immigration
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Abstract
While the United States owes its diversity and its very existence to a constant influx of
immigrants from around the world, immigration policy over the past three decades has
become increasingly controversial. Immigration reform have come and gone in response to
policy challenges throughout American history. In recent years, such efforts have focused on
the vast numbers of undocumented immigrants, the majority of whom entered the United
States along its southern border, to find work or in hopes of participating in the American
Dream.
This thesis deals primarily with those undocumented immigrants and the executive
action announced by President Obama on November 20, 2014, which revised deportation
policies and expanded programs for deferred removal action. These changes built upon earlier
Obama initiatives including the 2012 Deferred Action for Childhood Arrivals (DACA)
program. In announcing this newest program, known as the Deferred Action for Parents of
Americans (DAPA) President Obama argued that these changes in departmental practices
would address pressing issues related to the high number of undocumented immigrants
present in the United States. While the action did not constitute an amnesty program, it
allowed certain undocumented individuals to come out of the shadows and apply for deferred
action, and obtain work permits if they met the two programs’ requirements.
These executive actions came after years of failed Congressional attempts to reform the
country’s immigration system. The sweeping 2014 action was a direct response to
congressional gridlock over a promising bipartisan immigration reform package (commonly
referred to as the “Gang of Eight” bill). During the announcement of the latest program, the
President reiterated his support for Congress to pass legislation, codifying his executive action
and enacting more expansive immigration reforms, which could only occur through
legislative action. Not surprisingly, some members of Congress opposed the President’s

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actions. Specifically, congressional Republicans were outraged and threatened to take
retaliatory action against the President. This thesis examines the President’s executive action,
the way it was received by Congress and questions of the action’s constitutionality.
The first chapter examines the Constitution and the provisions of power it grants the
executive branch in Article II, finding that the constitutional provisions relating to the
President’s executive authority are particularly broad. Chapter one will also examine two
previous examples of presidential precedent, which are very similar to President Obama’s
action: President Reagan’s Family Fairness doctrine of 1987 and President George H.W.
Bush’s subsequent expansion of that program.
The second chapter examines and analyzes President Obama’s 2014 executive action, as
well as the politics before and after the announcement. Specifically, chapter two describes
House Republican’s rejection of the “Gang of Eight” bill, which significantly impacted the
timing of the President’s announcement. The chapter also examines the scope of the
expansion of DACA, the implementation of DAPA and the new deportation priorities.
Finally, the chapter examines legal challenges to the action, which elucidates the opponents’
viewpoints on the executive action.
The third and final chapter analyzes the action and the political response through
Stephen Skowronek’s theory of “structure and action”, which relates to political time. It
concludes that President Obama served much of his presidency as a “reconstructive”
president, similar to President Reagan’s tenure. Thus chapter also examines the role of
political polarization and the opposition among congressional Republicans as evidenced
through Pew Research Center data.
The thesis concludes that the President’s limited actions fit squarely within the
Constitution’s original intent, operating within the parameters of the existing statutory
framework, and are similar to previous presidential actions taken by Presidents Reagan and

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George H.W. Bush. As such, the thesis concludes that President Obama’s action is
constitutional, but that the final conclusion, which will be determined by the Supreme Court.
This thesis is 106 standard pages (222.461 characters) excluding front page, abstract, table of
contents and bibliography.

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Table of Contents
Abstract......................................................................................................................................i
Introduction ..............................................................................................................................1
Thesis Statement................................................................................................................................ 4
Theory ................................................................................................................................................ 5
Method................................................................................................................................................ 6
Structure ............................................................................................................................................ 6
Disclaimer .......................................................................................................................................... 7
I. Constitutional Interpretation and Executive Action.........................................................9
I.I. Provisions of Executive Power ................................................................................................. 11
The Vesting Clause....................................................................................................................... 11
The Commander-in-Chief Clause................................................................................................. 12
The Take Care Clause................................................................................................................... 13
Veto Power.................................................................................................................................... 15
I.II Original Intent .......................................................................................................................... 16
Differing Views ............................................................................................................................ 16
The Two Constitutional Presidencies ........................................................................................... 19
Criticism of Tulis’ “Rhetorical Presidency”................................................................................. 24
The Role of the President.............................................................................................................. 26
I.III Presidential Precedent and Immigration.............................................................................. 28
Executive Orders........................................................................................................................... 29
Executive Action........................................................................................................................... 30
President Ronald Reagan .............................................................................................................. 31
President George H. W. Bush....................................................................................................... 35
I.IIII Conclusion.............................................................................................................................. 36
II. President Obama’s Executive Action on Immigration: Misuse of Executive Power? 39
II.I The Immigration Debate Before the November 20, 2014 Announcement .......................... 40
Recent Immigration Policy Efforts ............................................................................................... 42
Midterm Election Politics ............................................................................................................. 44
President Obama’s Legacy on Immigration ................................................................................. 48
II.II President Obama’s Executive Action on Immigration........................................................ 49
Persuasion Politics ........................................................................................................................ 54
II.III Agency Implementation of Executive Action Programs.................................................... 56
Deferred Action for Childhood Arrivals Program (DACA)......................................................... 57
DAPA Implementation and DACA Expansion ............................................................................ 58
II.IV Questioning Executive Legitimacy....................................................................................... 61
Department of Justice Memorandum............................................................................................ 62
Prioritized Deportation.................................................................................................................. 63
Deferred Action for Parents of Americans (DAPA)..................................................................... 64
Backlash from the Courts.............................................................................................................. 68
Judge Hanen’s Opinion................................................................................................................. 70
U.S. Court of Appeals for the Fifth Circuit Ruling...................................................................... 73
II.V. Conclusion............................................................................................................................... 75
III. Political Time: A Factor in the Debate about President Obama’s Executive Order?
..................................................................................................................................................78
III.I. Stephen Skowronek: “Structure and Action”..................................................................... 79
Recurrent Structures of Presidential Authority............................................................................. 80
III.II Political Polarization ............................................................................................................. 86
III.III Response to President Obama’s Executive Action ........................................................... 88
III.IV Political Time and Executive Action on Immigration ...................................................... 92
III.V The Price of Politics – Partisan Loss and Gains ................................................................. 94

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The Hispanic Electorate................................................................................................................ 94
Party Appeal.................................................................................................................................. 95
The 2008 Election......................................................................................................................... 96
The 2012 Election......................................................................................................................... 97
III.VI Conclusion............................................................................................................................. 99
Conclusion.............................................................................................................................101
Bibliography .........................................................................................................................107
Primary sources:............................................................................................................................ 107
Secondary sources:........................................................................................................................ 110
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Introduction
On November 20, 2014 President Barack Obama announced his executive action on
immigration. The announcement marked the culmination of months of a political tug of war
between Congress – especially congressional Republicans – and the executive office.
Speaking from the East Room of the White House, the President laid out his action, which
would implement new practices for reprioritizing deportation and expanding opportunities for
deferred action to undocumented immigrants.
The debate leading up to the announcement had been highly polarized. The Senate
passed a comprehensive immigration bill in the summer of 2013, but in 2014 the Republican
leadership in the House of Representatives refused to let the bill come to a vote. The proposed
bill, backed by eight senators from both political parties, presented solutions to many of the
issues facing the immigration system. Although the House had enough votes to pass the bill,
Republican leaders feared the price the passage of the bill might cost the Republican Party in
the upcoming midterm election.
In July 2014, news of the bill’s failure prompted President Obama to promise executive
action to address the most pressing issues of the broken immigration system. The President’s
dramatic announcement right before the midterm election made both Democrats and
Republicans anxious. While congressional Democrats feared losing seats over newly imposed
changes, Republicans bashed the President for wanting to, as they argued, act against the
Constitution and wander into Congress’ legislative territory. Listening to his party, the
President delayed any official action until after the midterm election, in which the Democratic
Party suffered a substantial loss in both chambers of Congress, losing important legislative
power.
After President Obama took action in late November, congressional Republicans
continued to oppose the President’s use of executive action – some even went as far as

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arguing that the President ought to be impeached. However, the action did not come to a halt
until a federal District Court Judge in Texas decided to impose an injunction on the changes
the action sought to implement. The arguments against the action were not, at first glance,
based on the proposed policy changes, but rather questions surrounding the President’s
executive authority to take such action. Republicans in Congress argued that the President’s
action had poisoned the well for any incentive to pass a new immigration reform. The
President, however, urged Congress to pass new reform, which would have a broader reach
than the provisions of his executive authority allowed.
Each major wave of immigration has sparked debate and expression of xenophobic
sentiments.1
The current debate on immigration, largely addressing immigrants of Hispanic
descent is, in some ways, no different. In other respects, the political debate on immigration
has shifted from previously focusing on immigration in general to now, when the debate
revolves around undocumented immigrants. Hispanic immigration is not a new phenomenon
in the United States, but the number of undocumented immigrants has more than tripled since
1990. 2
Often, Hispanics without proper documentation are forced to work low-income jobs in
hard manual labor. These jobs often offer no benefits in terms of medical insurance or access
to retirement programs.3
Children of undocumented immigrants also face tough odds, even if
they themselves are American citizens. Growing up with weaker support systems than their
non-Hispanic peers, they often face incredible disadvantages socially, academically and
economically. Furthermore, the fear of deportation is a constant reminder of the fragility of
their situation - millions of families risk being separated if law enforcement becomes aware of
their status as undocumented immigrants.
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1
Alejandro Portes & Rubén G. Rumbaut: Immigrant America: A Portrait. Berkeley: University of
California Press, 2006.
2
Pew Research Center: ”5 facts about illegal immigration in the U.S.” July 24, 2015.2
Pew Research Center: ”5 facts about illegal immigration in the U.S.” July 24, 2015.
<http://www.pewresearch.org/fact-tank/2015/07/24/5-facts-about-illegal-immigration-in-the-u-s/>
Web. August 1, 2015.!
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In spite of not providing fair wages and having poor access to social benefits, the United
States is still dependent on the labor undocumented immigrants provide. American agriculture
and service industries would struggle tremendously, if every single undocumented immigrant
was rounded up and deported. 4
Certainly, some industries have a vested interest in
maintaining the access to a cheap labor force, but American society as a whole does not
benefit from a system where so many undocumented immigrants are forced to accept jobs that
are, literally, at the bottom of the food chain.
President Obama’s executive action, and the changes he sought to implement with it,
should work to integrate the undocumented immigrants into American society to a larger
extent than they are today. While all of the estimated 11 million undocumented immigrants
cannot be granted deferred action, a sizable portion will be able to work towards a safer and
more certain future. The President’s discourse, as this thesis will examine, emphasized the
responsibility the United States has, especially with its rich history of immigration, which is
at the foundation of the nation. In some ways, the new wave of immigrants, primarily from
Latin America is no different from earlier waves of immigration. These new immigrants want
the same things immigrants before them wanted: a better life for themselves and their
children. In other ways, Latino immigrants, and perhaps especially Mexicans, have difficulty
assimilating because they form strong diasporas when they arrive in the United States.
Mexicans immigrate in such quantities that it makes it harder for them to undergo successful
assimilation, and thus come closer to securing the American Dream.5
However, what seems to
have changed since the reform efforts of the 1980s is Congress’ willingness to solve the issue
in a bipartisan manner, which political observers said could show one party as weak and cost
votes in the 2014 elections.
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4
H.A. Goodman: ”Illegal immigrants benefit the U.S. economy” The Hill. April 23, 2014,
<http://thehill.com/blogs/congress-blog/foreign-policy/203984-illegal-immigrants-benefit-the-us-
economy> Accessed August 1, 2015
5
Samuel P. Huntington: Who We Are – The Challenges to America’s National Identity. New York:
Simon & Schuster, 2004. pp. 185-188

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Thesis Statement
The object of this thesis is to examine the executive action announced by President
Obama on November 20, 2014 by the following perspectives: The Constitution’s provisions
of power in the executive, presidential precedent and “political time.”
Executive power, and the president’s authority to take unilateral action derive from the
Constitution as well as from legal precedent established by previous presidents. By examining
constitutional provisions of power, as well as presidential precedent on matters of executive
action related to immigration, this thesis will analyze the merits upon which President Obama
took action. Finally, the theory of “political time” and an analysis of political polarization will
be used to reach a conclusion on the executive action’s future.
The action and how it seeks to solve pressing issues related to undocumented
immigrants will be the focal point of the thesis. Thus, President Obama’s rhetoric related to
the action will be examined. Furthermore, the legal challenges facing the Obama
Administration following the action will be included in order to examine the opposition’s
standpoint.
Examining two specific cases of executive action taken by President Reagan in 1987
and President George H.W. Bush in 1990 and linking these to President Obama’s 2014 action
will establish a foundation for an analysis of the state of the current political environment in
the United States. The current political environment will furthermore be analyzed through the
legal challenges, as well as the Republican discourse in Congress both which condemn
President Obama’s actions as unconstitutional. The examination of the Constitution,
interpretations of “original intent” and presidential precedent will make possible an analysis
of whether the accusation of unconstitutionality is fair, or rather a case of increased party
animosity and a change in “political time.”

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Theory
The main presentation of theory has been relegated to chapter one and three. The
decision stems from the fact that I find it more accessible to present theory in the very
chapters it is applied, rather than here in the introduction. That way, the reader will not have
to flip back and forth. A short overview of the thesis’ theory will be provided here as well:
The first chapter is mainly based on theory by Raymond Tatalovich, Thomas S.
Engeman, Jeffrey Tulis, Mel Laracey and Richard Neustadt. These scholars all deal with the
concept of “original intent” in relation to the executive branch. Tatolovich and Engeman (The
Presidency and Political Science: 200 Years of Constitutional Debate) examine the main
areas of debate during the Constitutional Convention and the effects it had on the executive
branch. The Federalists and Anti-federalists’ viewpoints are examined in order to provide a
framework for Jeffrey Tulis’ (“Two Constitutional Presidencies.”) theory. Tulis’ argues that
the American presidency was not intended to be a strong branch in government, but rather
non-rhetorical. Today however, Tulis argues that the modern presidency is very strong
rhetorically, which has changed the dynamics between the three branches in government. Mel
Laracey (“Talking Without Speaking, and Other Curiosities.”) critiques Tulis’ theory and
argues that the Framers did in fact frame the executive branch in such a vague fashion that
strong use of rhetoric was possible. Finally, Richard Neustadt (Presidential Power and the
Modern Presidents) provides the framework for how presidential precedent has increased
unilateral power in the executive.
Chapter one’s theoretical framework will be applied in chapter two’s analysis of
President Obama’s executive action.
The third chapter’s theoretical framework is based on Stephen Skowronek (The Politics
Presidents Make) and Frances E. Lee. (“How Party Polarization Affects Governance.”)
Skowronek’s theory of “structure and action” asserts that American presidents can be
categorized according to their affiliation/opposition to already established policy

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commitments. Whether these commitments are “resilient” or “vulnerable” will determine the
presidents’ success in pursuing their own agendas. Frances E. Lee examines political
polarization and argues that it has increased dramatically over the course of the last decade,
and her theory can thus help shed light on the current political climate.
Method
In order to examine President Obama’s executive action on immigration, I will be
relying on a number of legislative documents, executive orders and departmental
memorandums. In order to examine the use of executive action in relation to immigration, I
will use President Obama’s November 20, 2014 speech as well as Presidents Reagan and
George H.W. Bush’s use of executive power as case studies. All three will be examined in
relation to the theoretical framework of “original intent”, presidential precedent and “political
time”. Finally, I will also employ academic literature for support.
Due to the topic’s contemporary character, I have also included a number of newspaper
articles, as well as material from immigration advocacy groups due to a lack of academic
articles. The combination of academic sources, legislative documents as well as credible
newspaper articles is necessary in order to contextualize President Obama’s executive action,
both in relation to the actions of Presidents Reagan and George H.W. Bush as well as the
debate on the action’s constitutionality.
Presidential ratings and other polling will only make up a fraction of the thesis, but are
nonetheless important.
Structure
Chapter one provides the main theoretical framework. The Constitution’s Article II, and
its description of the executive branch’s authority leads up to the discussion of “original
intent,” presidential precedent and the scope of executive power. Finally, the chapter

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examines Presidents Reagan and George H.W. Bush’s executive actions regarding
immigration.
The second chapter focuses on President Obama’s executive action. A brief summary of
the political situation leading up to the announcement will begin the chapter, along with an
overview of previous immigration legislation. President Obama’s speech announcing the
action is examined to provide the main political framework behind the action. Then, the
Department of Homeland Security’s official memoranda implementing the action are
examined. In order to analyze the current legal struggle the action is facing, the District Court
and Federal Court of Appeals decisions are analyzed and compared to the Department of
Justice’s memorandum on the action.
The third chapter examines the relationship between Congress and the executive branch,
primarily after President Obama made his November 20 announcement. The concepts of
“political time” and political polarization will be examined and applied to all three of the
presidents, whose executive actions have been examined in the previous chapters.
Disclaimer
The thesis relies on the examination of legislative documents, and other legal texts. I
have deemed it necessary to quote to a higher extent than with texts usually applied in
American Studies. That decision has been reached because it is difficult to paraphrase
legislative documents without simultaneously losing vital parts of the documents’
significance. Naturally, in each case I will attempt to the best of my ability and based on the
academic literature to lay out the meaning of the document in question.
Something, which I have found to be a struggle throughout writing this thesis, is the
usage of the pronouns “his/him” in relation to the President of the United States. However, I
have found the following sentiments written by Stephen Skowronek useful, and to be the
determinant throughout this thesis on the question of pronouns referring to the President:

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“Throughout, the male gender is justified historically but not prospectively when referring to
a President. When used as a gender synonym for human being it is outmoded.”6
I use the capitalized pronoun “the President” when referring to a specific president,
whose full name is clear to the reader by earlier mention. The small “p” “president” refers to
the concept. When I examine policy or statements made by President Barack Obama I refer to
him as “President Obama” or “the President” – Barack Obama refers to the Senator/candidate
he was before being sworn in on January 20, 2009.
When dealing with President George H.W. Bush I have decided to refer to him as
“President Bush.” Policy implemented or proposed by his son, President George W. Bush will
also be briefly examined in parts of the thesis, but in doing so, it will be clear which of the
two I am referring to.
Individuals, who have come to the United States, either legally or illegally but who are
now without the proper authorization, will, in this thesis, be referred to as “undocumented
immigrants”. Others may refer to these individuals as “undocumented aliens”, “illegal
immigrants”, “illegal aliens” etc. I have chosen “undocumented immigrants” because I felt it
was the least politicized term.
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6
Richard Neustadt: Presidential Power and the Modern Presidents. New York: The Free Press, 1990.
p. 4, footnote

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I. Constitutional Interpretation and Executive Action
The executive office and its powers were debated exhaustively during the Constitutional
Convention in 1787. Of significant discussion among the delegates were questions of length
of term, eligibility for re-election and the scope of powers the executive branch should
encompass. The Framers wanted to avoid demagoguery of the presidency, and a sizable
portion of the debate focused on that point. To that end the delegates agreed upon an
executive office of the President with four-year terms, held by a person born in the United
States and checked by both the legislative and judiciary branches. The Framers deemed the
checks-and-balances system crucial to ensure future presidents would not become unchecked
tyrants like what they had they had rebelled against in 1775 during the Revolutionary War.
Today, scholars still debate the question of “original intent” and the scope of
presidential powers. Some of these scholars, including Raymond Tatalovich and Thomas S.
Engeman, argue that the Framers had a clear vision of the nation they wanted to establish, and
intended that the Constitution should be interpreted literally. Others, including Jeffrey Tulis,
whose theory on the “rhetorical presidency” will be examined in this chapter, find that the
Framers intended to create elastic constitutional powers for the executive branch, exactly
because they foresaw social change, and wanted to ensure the Constitution would still be
applicable long after its ratification.
This first chapter of this thesis will discuss executive power established by the
Constitution and historical examples illustrating varying interpretations of the scope of this
power. This chapter will examine the theories of constitutional interpretation and original
intent to establish an analytical foundation for two cases regarding executive action connected
to immigration reform.
First, this chapter will examine Article II of the Constitution in order to define the
central provisions of executive power: the “Take Care”-, “Vesting”- and “Commander-in-

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Chief” Clauses. Article I and its grant of veto power is likewise examined. Second, the
provisions of executive power are linked to theory of original intent presented by William G.
Howell, Raymond Tatalovich and Thomas S. Engeman. Examining original intent is
important because of the vagueness of Article II, which to a large extent undergoes
interpretation before applied by presidents wishing to take executive action.
Third, Jeffrey Tulis’ theory regarding the modern presidency and presidential rhetoric is
examined. Tulis argued that there are two constitutions, which provide different approaches to
leadership. His theory applies here because it denotes the separation between the original
presidency and a more modern style of leadership exhibited by American presidents today.
Mel Laracey critiques Tulis’ theory, arguing that strong rhetoric does not just belong to the
modern presidency, but also to the presidents who came before. Laracey’s criticism will show
that the use of rhetoric and increased used of unilateral power is not a modern power grip
exhibited by modern presidents, but rather a historic practice.
Finally, presidential precedent in relation to executive action and immigration policy is
examined to provide practical examples leading up to chapter two’s examination of President
Obama’s 2014 executive action on immigration. Richard Neustadt provides an important
framework for presidential precedent, as he examines how presidential power has increased
due to previous presidents’ use of unilateral action. Neustadt’s theory will lead up to an
analysis of two examples of presidential precedent, which is examined in the latter part of this
chapter. Presidents Reagan and Bush both exercised use of executive power on immigration,
which are listed both by President Obama and congressional Democrats as providing legal
precedent for the November 20 action. An analysis of whether that assessment is correct or
not will conclude this first chapter of the thesis: To what extent can unilateral action exercised
by the president be justified by arguments made during the Constitutional Convention, and
how can presidential precedent be used to legitimize new use of unilateral action?

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I.I. Provisions of Executive Power
The U.S. Constitution provides the framework for the three branches of government.
Article II deals exclusively with matters related to the executive branch, as it lists the explicit
powers the office holds, and from which the implicit powers are derived. Since this thesis
examines presidential powers, it is not necessary to examine the portions of Article II that
deal with the more practical and logistical parts of the presidency. Rather, this thesis will
focus on the powers of the executive branch stated in and derived, primarily, from Article II,
which denotes provisions of power exclusively in the executive branch. A short detour to
Article I is necessary in order to look at the veto power.
The Vesting Clause
The first section of Article II provides the framework for the so-called Vesting Clause
by stating: “The executive Power shall be vested in a President of the United States of
America.”7
This provision of power is from the Constitution, not from Congress or the
Supreme Court. All three branches of government have their own “vesting” clauses in their
respective articles of the Constitution, but because Article II is especially vague, the question
of exactly what the Framers meant has, from time to time, been debated, often in relation to
the expansiveness of the Vesting Clause.
Whether the Vesting Clause grants any power not elsewhere listed in the Constitution is
entirely a question of semantics and interpretation. Seeing as the Vesting Clause marks the
beginning of Article II, it is plausible that the Framers merely intended the sentence as a way
of introducing the explicit powers given to the executive branch actually listed in Article II.
The fact remains that the majority of executive orders and other examples of executive actions
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7
The Constitution of The United States. September 17, 1787.
<http://www.archives.gov/exhibits/charters/constitution_transcript.html> Web. April 20, 2015. Art. II,
Sec. 1, Cl. 1 l. 1

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derive from exactly this kind of vague language observed in Article II.8
Also often invoked
are the powers linked to the Commander in Chief- and the Take Care Clause, which shall be
examined in detail below. While these grant somewhat more specific powers, the Vesting
Clause is, as it were, the introduction to Article II, but written in such a way that it has been
subject to interpretation, and still is to this day.
The Commander-in-Chief Clause
Section 2 of Article II in the Constitution begins as follows: “The President shall be
Commander-in-Chief of the Army and Navy of the United States and of the Militia of the
several States, when called into the actual Service of the United States,”9
thus granting the
President unilateral power in all matters regarding the military. The Commander-in-Chief
Clause grants the president the power to wage war, but not to declare it – that power lies with
Congress.10
This provision of explicit power adds “energy” to the executive office, because
the President can, to a certain extent, act independently of Congress in matters of urgency.
The power as Commander-in-Chief was famously interpreted broadly when President
Truman desegregated the military in 1948 by issuing Executive Order no. 9981. The use of
executive power in order to desegregate the armed forces was controversial because
segregation was the law of the land across the United States, and especially in the south, at the
time. But, President Truman was able to desegregate by stating: “…by virtue of the authority
vested in me as President of the United States by the Constitution and the statutes of the
United States, and as Commander in Chief of the armed forces…”11
Thus, President Truman
affirmed the power granted to the executive branch by the Constitution, by invoking both the
Vesting Clause and the Commander-in-Chief Clause. Due to the vagueness of the provision
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8
Wording at the beginning of executive orders often includes: ”By the powers vested in me by the
United States’ Constitution”
9
The Constitution of the United States. Art. II, Sec. 2, Cl. 1 ll. 1-2
10
Ibid. Art. I, Sec. 8, Cl. 11.
11
Harry S. Truman: “Executive Order no. 9981.” The American Presidency Project. July 26, 1948.
<http://www.presidency.ucsb.edu/ws/index.php?pid=60737> Web. March 1, 2015. ll. 5-8

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naming the President Commander in Chief, President Truman found it constitutional to ban
segregation by way of an executive order and circumventing Congress. Furthermore, Truman
invoked the Vesting Clause to further segment the constitutionality of his actions.
The same use of executive power was exhibited by President Franklin D. Roosevelt in
his Executive Order no. 9066 from 1942, which established internment camps during WWII
for, primarily, Japanese Americans. President Roosevelt argued that he was acting as
Commander-in-Chief protecting Americans in a military zone: “…by virtue of the authority
vested in me as President of the United States, and Commander in Chief of the Army and
Navy, I hereby authorize and direct the Secretary of War…”12
Again, Roosevelt argued for
the legitimacy of his actions by way of both the Vesting Clause and the Commander-in-Chief
Clause.
While President Truman was praised for his action and interpretation of these
provisions of executive power, President Roosevelt’s executive order ultimately became a
heavily criticized example of the use of executive power and would later prompt an official
apology and compensation for the victims by way of the 1988 Civil Liberties Act.13
These
examples of presidential precedent can illustrate how broadly, or narrowly for that matter, the
vagueness of the Vesting Clause and Commander-in-Chief Clause can be interpreted.
The Take Care Clause
The perhaps vaguest part of Article II is the so-called Take Care Clause, which has
been interpreted to establish sizable power in the executive branch. The clause reads: “…he
[the president] shall take Care that the Laws be faithfully executed and shall Commission all
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12
Franklin D. Roosevelt: “Executive Order no. 9066.” The American Presidency Project. February 19,
1942. <http://www.presidency.ucsb.edu/ws/index.php?pid=61698 > Web. March 1, 2015. ll. 9-10
13
Bilal Quereshi: ”From Wrong To Right: A U.S. Apology For Japanese Internment.” National Public
Radio. August 9, 2013. <http://www.npr.org/blogs/codeswitch/2013/08/09/210138278/japanese-
internment-redress> Web. March 2, 2015.

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the Officers of the United States.”14
The question of what the terms “take care” and
“faithfully executed” mean has been raised time and again throughout the course of the
American presidency. The clause has been determined as one, which denotes implicit powers,
nicknaming the president “Legislator in Chief.” That means that the President has authority
under the Constitution to, as it were, “take care” that legislation passed by Congress and
signed into law by the president himself, or a predecessor, is “faithfully executed.” If that is
not the case, the Take Care Clause can be interpreted to give the president power to act
accordingly and dismantle, reform or impose new legislation, at the president’s discretion.
The Take Care Clause is part of the checks and balances system, because the president “takes
care” that legislation passed by Congress is “faithfully executed” by government agencies,
which are at the president’s authority.
The scope of the Take Care Clause is difficult to define. As Richard Ellis writes in The
Presidency and the Executive Branch: “Although it is much quoted, the Take Care Clause
was never debated at the Constitutional Convention or at any of the state ratifying
conventions.”15
Ellis argues that since no records of debate about the Take Care Clause exist,
it thus leaves the meaning of the entire clause up for discussion and interpretation. Had there
been records of what the Framers originally intended with the clause, it would perhaps be
more limited in scope, but almost definitely easier to interpret.
Arguing on behalf of those opposing the expansion of executive powers through the
Take Care Clause, Richard Ellis writes:
“Critics of the unitary executive thesis, in contrast, doubt that the “take care”
clause “was intended to establish unbridled authority in the President and his men.”
“More plausibly, as DC Court of Appeals judge Ruth Bader Ginsburg wrote in her
1988 dissent, “the words were meant to import a limitation” on the president’s
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
14
The Constitution of the United States. Art. II, Sec. 3, Cl. I l. 5
15
Richard Ellis: The Presidency and the Executive Branch. New York: Routledge, 2012. p. 404 ll. 15-
17!

15!
power, to ensure that the president did not disregard or suspend laws passed by
Congress.”16
Again, as with other parts of Article II, and the rest of the Constitution for that matter, the
vagueness and ambiguity create both problems and leeway for interpretations, which seek to
expand executive power. The only way to decide which interpretation is “correct” is to look at
the original intent established by the Framers and ratifying delegates. From these records, it is
possible to draw conclusions on the legitimacy of the various interpretation of the Take Care
Clause and the other vague provisions of unilateral power.
Veto Power
Article I of the Constitution deals primarily with Congress, but also vests power in the
executive branch in form of the power to veto legislation. Article I, Section 7 reads:
“Every bill which shall have passed the House of Representatives and the
Senate, shall, before it become a Law, be presented to the President of the United
States; If he approve he shall sign it, but if not he shall return it, with his
Objections to that House in which it shall have originated, who shall enter the
Objections at large on their Journal, and proceed to reconsider it.”17
Here, the president’s ability to veto legislation, which he deems unconstitutional or otherwise
problematic, is clear. The president checks Congress in legislative matters and can choose to
veto bills, before they are signed into law. Congress likewise checks the president’s veto
power by having the ability to override his veto with a two-thirds majority. The veto power is
substantial because it ultimately can force Congress to follow the president’s agenda on
policy matters, where a two-thirds majority is unobtainable. Although Congress is the
legislative branch, the president does have a substantial, if not deciding, role in the legislative
process granted by the veto power.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
16
Ibid. p. 344 ll. 25-30
17
The Constitution of the United States. Art. I, Section 7.!!

16!
I.II Original Intent
As mentioned above, the parts of the Constitution describing and vesting power in the
executive branch are both vague and ambiguous. In his book Thinking about the Presidency –
the Primacy of Power William G. Howell writes: “Depending on how one chooses to read
these titles and responsibilities, one can draw radically different conclusions about the
constitutional bases for either a strong or weak presidency.”18
Throughout the book, Howell
debates and examines what led to the strong sense of ambiguity and profound vagueness
found in Article II. One of Howell’s main arguments is that the ambiguity was “born from
political compromise.” 19
Furthermore, Howell emphasizes that as a rule: “founding
documents must be flexible,”20
otherwise they would quickly become irrelevant. The question
of original intent and the presidency is not a new one, but rather one which has existed since
the ratification of the Constitution. Many scholars of history and political science alike have
examined the provisions granting the executive branch power, and how these ought to be
interpreted, considering the vagueness of Article II. Portions of these arguments are now
examined.
Differing Views
Professors Raymond Tatalovich and Thomas S. Engeman are examples of scholars,
who deal extensively with the question of original intent and the American presidency. Their
arguments, which they present in their book The Presidency and Political Science: 200 years
of Constitutional Debate examines the debate surrounding the establishment of the executive
office at the Constitutional Convention and the arguments expressed by Federalists and Anti-
Federalists.21
Tatolovich and Engeman argue that the debate between the two factions did not
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
18
William G. Howell: Thinking about the Presidency – the Primacy of Power. Princeton: Princeton
University Press, 2013. p. 63 ll. 22-25
19
Ibid. p. 67 l. 7
20
Ibid. p. 66 ll. 6-7!
21
The Federalist Party was the first political party in the United States. The party favored a strong
federal government. Anti-federalist did, as the name alludes, oppose the Federalist viewpoint

17!
end after the ratification of the Constitution, but rather that it continued hereafter, establishing
two separate models for leadership.
Tatalovich and Engeman argue that the Federalist Party established a presidency termed
the “Hamiltonian Presidency.” This form of presidency was established based on rhetoric
from Alexander Hamilton, who in the Federalist Papers had argued: “executive power was
compatible with republicanism.”22
Hamilton regarded the executive branch as the cornerstone
of the Constitution and sought to vest considerable “energy” in the presidency to ensure
correct execution of powers: “That unity is conducive to [executive] energy will not be
disputed. Decision, activity, secrecy and dispatch will generally characterize the proceedings
of one man, in a much more eminent degree, than the proceedings of any greater number.”23
Leading members of the Constitutional Convention favored this view, which sought energy
through unity, which meant not establishing a council for the president to consult with, as
other participants had suggested. Furthermore, establishing sufficient duration in office
would, as Tatalovich and Engeman write, too secure unity and continuity. The Federalist
believed that these two provisions would encourage the persuasion of policy for the public
good as well as allowing the president to exercise an independent leadership. The Framers
were however still worried about tyrants occupying the executive office and thus “…made the
absolutist veto of the British monarch more republican by allowing Congress to override a
presidential veto.” 24
So while Hamilton’s arguments show intent in the direction of
expansiveness of executive power, there is still evidence that the Framers feared vesting too
much power in the executive by allowing for the increased amount of “energy” Hamilton
wanted.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
altogether. (Eric Foner: Give me Liberty! An American History. New York: W.W. Norton &
Company, 2009. pp. 253-254, 274)
22
Raymond Tatalovich and Thomas S. Engeman: The Presidency and Political Science: 200 Years of
Constitutional Debate. Baltimore: John Hopkins University Press, 2003. p. 25 l. 24
23
Ibid. p. 26 ll. 21-24
24
Ibid. p. 29 ll. 1-3

18!
The antidote to the Hamiltonian Presidency is, according to Tatalovich and Engeman,
the “Jeffersonian Presidency.” Based on ideas presented by Anti-Federalists, it reversed
almost exactly what the Federalists had established, redefining the American presidency.
Anti-Federalists’ version of the presidency encompassed a minimalist view of constitutional
power, which was in tone with the group’s vision for a smaller and weaker federal
government. Tatalovich and Engeman examine what provisions separate the two forms of
presidencies: “A fundamental difference between the Federalists and the Jeffersonians
concerns their view of implied powers. […] The Federalists argue that any measure fulfilling
constitutional ends is justified under the “necessary and proper clause.” The Jeffersonians
argue that the “necessary and proper clause” essentially contained no power at all.”25
Very
importantly, Jeffersonians found, except on “the narrowest grounds”26
the use of the veto to
be unconstitutional. While the “the necessary and proper” clause refers to Congress, it bears a
strong resemblance to the Take Care Clause examined above.
What conclusions can be drawn from Tatalovich and Engeman’s thesis on the two
presidencies and original intent as a whole? First, the very fact that a staunch division existed
between the two early political factions makes it easier to comprehend why Article II appears
so vague and ambiguous. The two groups practically did not agree on any provisions of
power and envisioned almost completely opposite presidencies: “Hamilton embraces
prerogative and Jefferson embodies politics”27
in the words of Tatalovich and Engeman.
Whether Anti-Federalists laid the groundwork for today’s Republican Party, which, more
often than not, argues for the limitation of the powers of the presidency and government as a
whole, cannot be questioned.28
There can be no doubt that the core beliefs of both political
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
25
Ibid. p. 32 ll. 6-13
26
Ibid. p. 29 l. 39
27
Ibid. p. 40 ll. 14-15
28
It can however be argued that the opposite was the case during George W. Bush’s presidency,
during which policies such as the Patriot Act were enacted, and the Guantanamo Bay Detention Camp

19!
parties are based on some of these early interpretations and examples of rhetoric. The idea
that two presidencies exist, or have existed, seems very plausible and there can be no doubt
that the way current politics and policy are formulated has everything to do with the people
and policies of the past. The legitimacy of Tatalovich and Engeman’s theory are examined in
detail below with the assistance of other prominent scholars in the field of presidential
politics.
The Two Constitutional Presidencies
In 1987, Professor Jeffrey Tulis presented his theory of the “Two Constitutional
Presidencies.” Tulis’ theory is relevant in examining original intent because it presents two
rather different ways of interpreting the Constitution’s provisions of power in the executive
branch. While obvious parallels can be drawn between Tulis’ and Tatalovich and Engeman’s
theories, Tulis’ adds yet another dimension. Tulis’ theory can, alongside Tatalovich and
Engeman’s study, be used to explain the difference in the current political reception of
President Obama’s executive order on immigration, which will be examined in chapter three
of this thesis. “The Two Constitutional Presidencies” also provide the framework for
presidential use of rhetoric, a necessary tool in the analysis of President Obama’s executive
action.
Tulis’ work divides leadership into two by creating two constitutions, each providing a
different framework for presidential leadership. The first constitution Tulis examines is “big
C” Constitution, also known as the original Constitution crafted by the Framers and ratified in
1787. Although Tulis argues that there is a newer, more modern, interpretation of the
Constitution, the original is still relevant as it provides the basis for the second constitution.
As Tulis writes in ”The Two Constitutional Presidencies”: “Because most of the structure [of
the Constitution] persists, it seems plausible that the theory on which the presidency was
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
was founded. Both are examples of expansive use of unilateral power and a stronger federal
government.

20!
constructed remains relevant to its current functioning.”29
The original, enduring Constitution
is one, which opposes rhetorical leadership due to the Framers’ fear of demagoguery turning
into tyranny, which was perhaps the most prevalent fear during the Constitutional
Convention: “The Founders worried especially about the danger that a powerful executive
might pose to the system if power were derived from the role of popular leader.”30
Having
just broken away from the British rule, it is understandable why the Framers feared
establishing an executive branch, which would hold power similar to that of a monarch.
The second constitution, by Tulis referred to as the “little c” constitution, was initially
formulated by President Woodrow Wilson. This leadership style builds on presidential
precedent as well as the public’s understanding of the Constitution (big “C”). Tulis argues
that this, more modern version, prescribes an active rhetorical leadership, which is susceptible
to popular opinion and, according to Tulis: “is buttressed by several institutional, albeit extra-
constitutional, developments.”31
This second constitution thus comes somewhat awkwardly
into conflict with the original Constitution, because the modern version emphasizes popular
leadership and independence, whereas the original version does not.
As previously mentioned, the Framers wanted a limited federal government and were
wary of popular leadership because they feared demagoguery turning into tyranny such as had
happened during Shay’s Rebellion.32
The Framers determined that the best way to avoid a
tyrant taking over the presidency was to establish the checks and balances system, because it
would ensure oversight between the branches, in order to: “make effective governance more
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29
Jeffrey Tulis: ”The Two Constitutional Presidencies.” in The Presidency and the Political System.
(ed. Michael Nelson) Washington, DC: CQ Press, 2000. p. 93 ll. 21-23
30
Ibid. p. 95 ll. 35-37
31
Ibid. p. 94 ll. 3-4
32
Shay’s Rebellion was a riot, which took place in 1786-87 in Massachusetts. The riot was the
culmination of mounting frustrations from farmers, who faced foreclosures and the loss of property
because of increased taxes. The farmers had tried to persuade the legislative to change the tax laws but
the attempts had failed, which sparked the riots. (Sidney Milkis & Michael Nelson. The American
Presidency. Washington, DC: CQ Press, 2007)

21!
likely.”33
This would, the Framers argued, happen by “preserv[ing] liberty by preventing the
arbitrary rule of any one center of power.”34
Tulis writes that independence of the executive
was important because the Framers wanted the president to “withstand the temporary delusion
of popular opinion.”35
The president’s authority was to be “draw[n] from the Constitution
rather than from another governmental branch.”36
The Framers argued that while the
legislative branch would be closely tied to popular opinion, the executive ought to be shielded
from it, to avoid demagoguery. This independence would provide the presidents with their
own angles on policy, which they could then deliver to Congress.
The modern perspective on how to exercise power in the executive branch, by Tulis
termed the “second constitution” was first articulated by Woodrow Wilson. This constitution
is almost an attack on the Framers’ design, and was presented in two separate writings by
Wilson. The first paper “Congressional Government” published in 1884 suggests
constitutional amendments, which would reform the American political system in such a way
that it would “emulate the British parliamentary system…”37
That system was of course the
same exact system the Framers had been adamant to avoid, as they had just fought the British
in the Revolutionary War. A later paper by Wilson, titled “Constitutional Government in the
United States” was published in 1908, and presented a different approach to changing the
presidency. In this later paper Wilson is “urging instead that the existing Constitution be
reinterpreted to encompass his parliamentary views”38
Wilson found that the meaning of the
Constitution changes over time as different generations interpret and analyze its provisions.
This doctrine later became known as “the rhetorical presidency.”
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
33
Tulis, Jeffrey: ”The Two Constitutional Presidencies.” p. 103 l. 22
34
Ibid. p. 103 ll. 12-13
35
Ibid. p. 102 l. 6
36
Ibid. p. 102 ll. 6-7
37
Ibid. p. 106 l. 20
38
Ibid. p. 106 l. 24

22!
Tulis argues that Wilson found the separation of powers to be “the central defect of
American politics”39
because the doctrine meant “the negation of powers by one branch over
another.”40
To Wilson, the American political system was one in which Congress dominated,
causing frustration on legislative matters, lack of coordination and direction, and an absence
of leadership. To him, this non-functioning political system was due to the fact that “the
Founders had mischaracterized their own system.”41
The mischaracterization lies in the fact
that no branch, according to Wilson, has substantial power because another branch can, at any
time, interrupt and negate any action taken.
The solution to the American political system, which Wilson deemed dysfunctional
since the ratification of the Constitution, was to fully integrate Congress and the executive
branch in each other’s activities. The presidential “energy,” which Wilson found to be lacking
in the executive, would only exist if Congress backed the President instead of working against
him. On the question of representation and how closely connected the President ought to be
with the people, Wilson had a very different view from that of the Framers. He believed that
interplay between the representative and the constituency was of vital importance, and that the
president should act as leader-interpreter42
: “He [Wilson] favored an interplay between
representative and constituent that would, in fact educate the constituent.”43
Close ties with
the public were to Wilson, unlike the Framers, at the heart of government, and he was
adamant about printing all his speeches to ensure maximum accessibility for the American
people.
Wilson’s idea of a modern president was someone capable of identifying a set of issues,
which he believed would reflect the will of the people. “Interpretation” is a key word in
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
39
Ibid. p. 107 ll. 9-10
40
Ibid. p. 107 l. 12
41
Ibid. p. 108 l. 7
42
The term ”leader-interpreter” refers to a leader, who explains policy to the people in accessible
terms, in order to gain support, either for a specific policy or the leader’s presence as a whole. The
term derives from Wilson’s writings on the executive branch.
43
Tulis, Jeffrey: ”The Two Constitutional Presidencies.” p. 110 ll. 30-31!

23!
understanding Wilson’s doctrine: “First the leader must understand the true majority
sentiment underneath the contradictory positions of factions and the discordant views of the
masses. Second, the leader must explain the people’s true desires to them in a way that is
easily comprehended and convincing.”44
Unlike a demagogue, a leader-interpreter reacts to
permanent, true popular intent and not momentary desires.
The important thing to take away from Tulis’ theory is that both constitutions encourage
and support an energetic president. The difference is from where the presidents draw their
energy. The Framers believed that energy should come from authority, resting on
independence provided by the Constitution. Wilson, and the presidents succeeding him, drew
power and authority directly from the people. What divides the two is the legitimization of
popular leadership, much like the disagreement between the Federalists and Anti-Federalists
examined above.
While the Framers argued that the public could judge a President on his actions after
they had been carried out, Tulis argues that keeping in touch with the people’s mood prepares
the president for action: He argues that major legislative change such as the 1986 Tax Reform
and the New Deal very likely would not have happened had it not been for the second
constitution, because both were results of strong rhetoric leaders. However, the rhetorical
presidency can also lead to incoherent policy because it tends to subvert deliberation in the
legislative branch. As it were, the second constitution does not replace the first Constitution,
but is rather an example of an interpretation of it, giving mandate to a rhetorical presidency,
through, amongst other practices, presidential precedent. The second constitution promises
energy not provided by the Constitution, but rather derived from the people, which is why
Wilson found that combining the two would make for a more complete whole.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
44
Ibid. p. 113 ll. 14-18

24!
Jeffrey Tulis is also known for his book The Rhetorical Presidency. The book, as the
title reveals, deals with the “rhetorical presidency.” The concept, which is very much linked
to the question of original intent, seems to enjoy a solid foundation in Tulis’ framework of the
“two constitutional presidencies.” I will therefore not go further into detail with Tulis’
“rhetorical presidency” as its main points have already been examined in the previous pages:
According to Tulis, there exists a staunch divide between early presidents and twentieth
century presidents. That divide has everything to do with the dissemination of rhetorical tools
and how the Constitution is interpreted.
Criticism of Tulis’ “Rhetorical Presidency”
In an essay titled “Talking Without Speaking and other Curiosities” Professor Mel
Laracey examines and questions Jeffrey Tulis’ conceptualization of the rhetorical presidency.
As with the theories previously examined in this thesis, Laracey’s essay too deals with the
question of original intent as it relates to the presidency. Laracey examines whether there is a
norm, based on the Constitution, that presidents direct their communication to Congress and
not the people.
Laracey’s main criticism of Tulis’ work deals with the definition of “going public.”
“Going public” refers to the various actions of a leader-interpreter, who explains policy to the
people in order to gain support for said policy. Laracey’s definition is much broader than
Tulis’: “I defined going public as any identifiable means – and not just speechmaking – by
which a president appeals to the public for support or understanding of his policies. This
broader definition makes a crucial difference in the analysis.”45
Laracey reached this
conclusion by studying presidential newspapers. These newspapers were subsidized and
established by presidential administrations, and they aimed to inform the American people
about the presidents’ stands on different policy areas. The presidents had close contact with
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
45
Mel Laracey: ”Talking Without Speaking, and Other Curiosities.” in Before the Rhetorical
Presidency (ed. Martin J. Medhurst) Austin: Texas A&M University Press, 2008. p. 20 ll. 21-24

25!
the editors of these newspapers, but it was a way to use newspapers as an outlet to voice their
opinions while still remaining within constitutional legitimacy, as Laracey writes:
“By using surrogates to convey their messages in this thinly disguised
fashion, these presidents were able to have their cake and eat it too. They were
able to present their positions and arguments to the American people, consistent
with their view that this was a legitimate part of the job of being president, while
doing it in a way that still paid lip service to the views of those other Americans
who believed that presidents should not be meddling in the public policy
process.”46
The presidents could distance themselves from unfavorable messages appearing in their own
newspapers because their names did not directly appear. Laracey argues that while these
newspapers had relatively small circulations and were mainly located in Washington, DC,
they were sent to other administration-supported newspapers elsewhere in the U.S. to ensure
broader reach. At a time when modern technology would have seemed like science fiction,
presidential newspapers worked as an excellent tool for going public.
Today, both political parties want a rhetorically strong presidency, but the extent to
which they will allow the president’s power to increase varies with political time and, of
course, the area which the president is taking action on. “Political time,” i.e. the cyclical order
of politics, which can explain the way the political environment is made up and how influence
(both by Congress and the president) ebbs and flows. The concept is framed by Stephen
Skowronek, and will be examined in detail in chapter three of this thesis.
Laracey argues that the reason behind this broadly accepted change in the use of
rhetoric in the executive branch is due to four factors. First is the democratic movement in the
early 1820s, which “turned the presidency into the only (with the vice presidency) popularly
elected national office.”47
Second, Laracey argues that the adaptation of the rhetorical
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
46
Ibid. p. 25 ll. 8-15
47
Ibid. p. 26 ll. 32-33

26!
presidency was made easier by the implementation of mass communications. The third factor
is the “increasing inclination of presidents to use their veto power as a policy tool.”48
Laracey
argues that using the veto meant that presidents would increasingly have to go public in order
to ask constituents to put pressure on their congressmen to accept the president’s veto. Going
public thus became part of the job for the American president. The fourth and last factor is:
“Woodrow Wilson’s brilliant exposition of the activist, popularly based conception of the
presidency in his 1908 book, Constitutional Government.”49
Together, these four factors established and segmented the idea of the rhetorical
presidency in such a way that going public became an integral part of being president of the
United States. Laracey argues that this development is not unconstitutional, but rather that the
Framers were aware that bargaining would become inevitable: “There is nothing wrong,
constitutionally, strategically, or institutionally, with going public. The practice, with all its
rhetorical and technological flourishes, is really just the manifestation of a venerable
American political concept: talking – and listening – to the people.”50
Furthermore, the
Framers could not have predicted the development of mass media, which to a large extent also
enables the presidents to go public.
The Role of the President
The late Richard E. Neustadt, a political scientist who researched presidential politics
for many years, dealt with the scope of presidential power established in Article II in his book
Presidential Power and the Modern Presidents.
In the book, Neustadt argues that although Americans frequently rate their presidents,
few are actually aware of what the premise of the job is, which makes for incoherent
measurements of actions: “if we treat the Presidency as the President, we cannot measure him
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
48
Ibid. p. 26 ll. 38-39
49
Ibid. p. 27 ll. 3-5!
50
Ibid. p. 27 ll. 24-27

27!
as though he were the government. Not action as an outcome but his impact in the outcome is
the measure of the man.”51
To Neustadt, “power” is equal to the president’s influence and his
study is thus the study of these influences in a strategic sense.
Examining the question of increased power in the executive branch by way of
presidential precedent, Neustadt’s argument is in tune with both Tulis and Laracey: “In
instance after instance the exceptional behavior of our earlier “strong” Presidents has now
been set by statute as a regular requirement.”52
According to Neustadt, a norm has been
created due to several examples of exceptional use of presidential power. Practices, which
previously were not considered commonplace, such as public speaking, press conferences and
legislative programs, are now the norm for American presidents. Neustadt argues that the
president is a leader, and therefore also a clerk, someone who has an overview and maintains
a political record: “Everybody now expects the man inside the White House to do something
about everything. […] His services are in demand all over Washington. His influence,
however, is a very different manner. Laws and customs tell us little about leadership in
fact.”53
The idea is that Congress needs someone from the outside with high status, who can
make decisions and offer political protection. Calling the president a clerk refers to the fact
that many consider the president’s responsibilities to involve actions of a more practical
manner, such as appointing people to different offices.
The “power to persuade” is one of Neustadt’s main concepts in his examination of the
scope of presidential power. Neustadt argues that the Constitutional Convention did not create
a separation of powers, but rather separated institutions sharing power, a sentiment that
echoes Wilson, as described above. While party ties are strong, the presidential nomination
process does, nevertheless, ensure separation: The president can urge Congress to go in a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
51
Neustadt, Richard E.: Presidential Power. p. 4 ll. 2-4
52
Ibid. p. 6 ll. 33-35
53
Ibid. p. 7 ll. 18-19, 28-31!

28!
certain direction because his position in the Oval Office does not directly depend on
Congress. The power to persuade is, according to Neustadt, the power to bargain, a power
Laracey too lists as an inherent part of the presidency. Bargaining politics is a game of give
and take, and the outcome is rarely, if ever, guaranteed. Neustadt argues that the president’s
authority and status gives him advantages over the people he wants to persuade: “From the
veto to appointments, from publicity to budgeting, and so down a long list, the White House
now controls the most encompassing array of vantage points in the American political
system.”54
The jobs of the people the president may be interested in persuading may, at one
point, depend on him and the office he holds, which vests an incredible amount of advantage
in the executive branch. The advantages of the presidency are checked by advantages of the
other branches of government. If the executive branch were the only one with advantages, the
other branches would be of little interest to the president.
Finally, Neustadt argues: “The essence of a President’s persuasive task, with
congressmen and everybody else, is to induce them to believe that what he wants of them is
what their own appraisal of their own responsibilities requires them to do in their interest, not
his.”55
This is an example of the leader-interpreter in his purest form: making the people and
Congress back a policy, by making them realize their responsibility in passing policy that
corresponds with the president’s agenda.
I.III Presidential Precedent and Immigration
As examined above, Article II of the U.S. Constitution, which provides the main
framework for the Executive Office, is both vague and ambiguous. The outcome has thus
been that the interpretation of presidential powers has largely been up to the establishment.
There are, as examined above, different theories all dealing with how the powers of the
presidency have evolved over time and why. While instances of the use of executive power
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
54
Ibid. p. 31 ll. 1-4
55
Ibid. p. 40 ll. 3-6!

29!
through executive action have been mentioned, the following pages will deal with examples
of executive action related specifically to immigration.
In the interest of simplicity, the number of examples will amount to just two, drawn
from the rather recent past. This will allow for a more comprehensive drawing of conclusions
and parallels, which will related to President Obama’s 2014 executive order on immigration
in chapter two.
Executive Orders
As mentioned briefly above, executive orders are not an explicit power granted to the
executive office in the Constitution. Rather, the power to issue executive orders derives from
the vague language in Article II. Executive orders or proclamations are a way for presidents to
circumvent Congress on legislative matters even though Congress is the legislative branch. If
an important issue is in need of action and Congress is not capable of taking legislative action,
then the president may find himself forced to issue an executive order. In matters dealing with
the military, governmental departments and agencies, significant power has been vested in the
president. In the case of executive orders or action where a president to some extent interprets
Article II, matters become complicated when the provisions of the article are used to vest
significant unilateral power in the presidency, which means that Congress is circumvented in
legislative dealings.
As examined in detail above, while the president has the power to veto, his legislative
powers beyond that are limited. Executive orders cannot enact new legislation but must rather
clarify or further existing law through the Take Care Clause.
If an executive order is in any way tied to federal funding, then Congress can vote
against such funding and thus strike down the executive order. But a bill defunding an
executive order may still find itself vetoed at the president’s desk – the tug of war can go on
forever, or until a two-thirds majority overrides the presidential veto. If, however, funding is

30!
not a factor, then it is up to the Supreme Court to determine the constitutionality and,
eventually, the fate of an executive order. All this constitutes an important part of the checks
and balances system. If the executive branch were capable of issuing executive orders without
any risk of having them revoked, the power of the office would far overshadow those of the
other branches. To date though, only two executive orders have been deemed unconstitutional
by the Supreme Court,56
testifying to the fact that although the use of such orders may from
time to time be perceived as controversial, the nature of the orders are, more often than not,
constitutionally legitimate.
Executive Action
Broadly, “executive action” can be used to describe all the measures the executive
branch can take in pursuing a specific policy agenda. More narrowly, an executive action,
such as President Obama’s from November 20, 2014, refers to an action, which is not legally
binding in the same way an executive order is. Rather, an executive action is the president’s
way of exercising discretionary power on matters, which fall under the federal government’s
authority. The practice of executive action is seen as a way for the president to persuade
Congress to legislate according in accordance with his agenda, and to “fill in the gaps” when
legislation in Congress has been reached as a result of compromise upon compromise.
Executive actions can be a preferred course of action to issuing an executive order when a
president wants to venture into a possible controversial policy area, where he does not wish to
go against Congress’ legislative authority, but still wants to make his agenda known through
changes to federal departmental practices.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
56
President Truman’s “Executive order no. 10340” and President Clinton’s “Executive order no.
12954” were both struck down by the Supreme Court. Both were deemed unconstitutional because
they attempted to make law rather than further or clarify existing law.

31!
President Ronald Reagan
President Reagan, and his involvement relating to the Immigration Reform and Control
Act of 1986 (IRCA), has been cited as an instance of presidential action comparable to
President Obama’s 2014 executive order on immigration. In reality however, the story is not
quite as straightforward.
Passing IRCA allowed certain undocumented immigrants the opportunity to apply for
deferred action,57
if they met certain requirements. Among these requirements the law stated:
“The alien must establish that he entered the United States before January 1, 1982, and that he
has resided continuously in the United States in an unlawful status since such date…”58
IRCA
did however not grant any rights to family members who met the requirements, which
allowed them to file for legal residency.
Congress’ deliberation of IRCA had not been easy. In Still the Golden Door – The Third
World Comes to America David M. Reimers examines the events, which led up to the bill
finally becoming law in 1986. Reimers writes: “President Carter sent a program to Congress
in August 1977 that combined employer sanctions with an amnesty for those illegally in
residence prior to 1970 and a temporary status for those who had come between 1970 and
1977.”59
Congress deliberated, voted and compromised in order to reach a consensus on the
new immigration bill, but it took almost ten years before IRCA was finally passed into law.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
57
According to the Department of Homeland Security: “Deferred action is a discretionary
determination to defer a removal action of an individual as an act of prosecutorial discretion. For
purposes of future inadmissibility based upon unlawful presence, an individual whose case has been
deferred is not considered to be unlawfully present during the period in which deferred action is in
effect. An individual who has received deferred action is authorized by DHS to be present in the
United States, and is therefore considered by DHS to be lawfully present during the period deferred
action is in effect. However, deferred action does not confer lawful status upon an individual, nor does
it excuse any previous or subsequent periods of unlawful presence.” (U.S. Citizens and Immigration
Services: “Frequently Asked Questions.” n.d. <http://www.uscis.gov/humanitarian/consideration-
deferred-action-childhood-arrivals-process/frequently-asked-questions> Web. August 5, 2015.)
58
Immigration Reform and Control Act of 1986. November 6, 1986.
<http://library.uwb.edu/guides/usimmigration/100%20stat%203359.pdf> Web. August 5, 2015. Sec.
245A P. 36
59
David M. Reimers: Still the Golden Door – The Third World Comes to America. New York:
Columbia University Press, 1992. p. 241 ll. 10-13.

32!
Reimers writes that the Reagan Administration wanted the bill to encompass a temporary
worker program, but that the debate, apart from that, was confined to Congress. When the bill
was finally passed, it did not grant any protection of family members of American citizens or
permanent residents. This was a blow to immigration advocacy groups, and which would
become the reason behind President Reagan’s decision to take executive action. An
amendment, which would have granted family members eligibility for legal status had failed
to pass in the House of Representatives. Reimers’ examination of Congress’ deliberation on
IRCA shows, that it was impossible to reach a bill, which would fully satisfy both chambers
of Congress. In fact Peter Rodino, chairman of the House Judiciary Committee said about the
bill that it constituted: “a compromise very, very delicately arrived at […] it is the only
political reality that will bring together all the forces.”60
IRCA thus became the product of
how years of deliberation, and constituted a bill which both the Senate and the House could
agree on, even if it did not encompass all the desired provisions which had been presented
throughout the long deliberation process.
According to the “Reagan-Bush Family Fairness: A Chronological History” report by
the Washington, DC based non-profit, non-partisan organization American Immigration
Council, IRCA meant that family members of undocumented immigrants who qualified for
residency would have to “wait in line’”61
along with others not eligible under IRCA’s
requirements. Thus, immediate family members of undocumented immigrants eligible for
legal status under IRCA would have to wait outside the United States for long periods of time
in order to be lawfully reunited with family members in the United States. Furthermore, some
undocumented immigrants were deported because they were not covered by IRCA while
close family members were, and could remain in the U.S. The issue of splitting or creating an
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
60
Ibid. p. 247 ll. 15-17
61
American Immigration Council: “Reagan-Bush Family Fairness: A Chronological History.”
December 2014.
<http://www.immigrationpolicy.org/sites/default/files/docs/reagan_bush_family_fairness_final.pdf>
Web. March 30, 2015. p. 1 l. 24

33!
unfair burden on these families blew up following the passage of IRCA. Family advocacy
groups protested IRCA for its missing provisions granting family members rights, the
American Immigration Council report writes.
On September 2, 1987 President Reagan issued Executive Order no. 12606 with the
accompanying title “The Family.” While the executive order did not contain the word
“immigration” or any words related thereto, it expounded how executive departments and
agencies must deal with issues that encompass families. Using the Vesting Clause, President
Reagan wrote: “In formulating and implementing policies and regulations that may have
significant impact on family formation, maintenance, and general well-being, Executive
departments and agencies shall, to the extent permitted by law, assess such measures in light
of the following questions.”62
President Reagan then listed a number of questions, which
aimed to guide agency staff when dealing with the formulation and implementation of
policies, which could affect families. The executive order had a clear message, not only to
executive departments and agencies, but also to the American people that President Reagan
believed in the importance of families. Even though immigration was not directly mentioned
in the executive order, the timing of its issuance spoke volumes.
On October 21, 1987 Immigration and Naturalization Service (INS) Commissioner
Alan C. Nelson announced the INS Family Fairness executive action, which followed the
guidelines put forward by President Reagan in Executive Order no. 12606. The INS was, until
March 2003, an agency under the U.S. Department of Justice. A presidentially appointed
commissioner served as head of the agency reporting to the Attorney General.63
This structure
meant that the INS Commissioner could issue a memorandum, which would implement
changes to agency policy. The order, popularly know as the “Nelson Memorandum,” laid out
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
62
Ronald Reagan: “Executive Order 12606.” The American Presidency Project. September 2, 1987
<http://www.presidency.ucsb.edu/ws/index.php?pid=34750> Web. March 31, 2015.!
63
U.S. Citizenship and Immigration Services: “Our History.” n.d. <http://www.uscis.gov/about-
us/our-history> Web. March 30, 2015.

34!
the provisions for the Family Fairness program, which would provide family members of
IRCA eligible immigrants a chance to apply for legal status. The memorandum clearly
encompassed the changes in tune with President Reagan’s executive order. The order upheld
congressional intent in that family members of those eligible for legal immigration status
under IRCA would continue to have to wait in line with other individuals applying for
residency. However, the Nelson Memorandum stated:
“The INS is exercising the Attorney General’s discretion by allowing minor
children to remain in the United States even though they do not qualify on their
own, but whose parents (or single parent in the case of divorce or death of spouse)
have qualified under the provisions of IRCA. The same discretion is to be
exercised as well in other cases which have specific humanitarian
considerations.”64
The American Immigration Council report recounts that the INS memorandum constituted a
compromise between congressional intent and the previously mentioned failed amendment
presented before the Senate by Senator John Chafee which: “would give spouses and children
excluded from IRCA a path to legalization.”65
Following the issuance of the Nelson
Memorandum, a continuing resolution66
including an amendment seeking to expand the INS’
Family Fairness provisions to cover both children and spouses was presented in the House.
The amendment in the continuing resolution sought to “block funding for deportation of both
spouses and children of legalizing families.”67
Although the amendment was met with
opposition in the House, it was passed. It did however not pass in the Senate, which meant
that the INS Family Fairness program remained funded, and thereby valid.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
64
Alan C. Nelson: ”Legalization and Family Fairness – An Analysis.” October 1, 1987.
<http://www.prwatch.org/files/ins_family_fairness_memo_oct_21_1987.pdf> Web. March 30, 2015.
p. 2 ll. 48-53
65
American Immigration Council: “Reagan-Bush Family Fairness.” p. 2 ll. 5-6
66
A continuing resolution is “ Legislation in the form of a joint resolution enacted by Congress, when
the new fiscal year is about to begin or has begun, to provide budget authority for Federal agencies
and programs to continue in operation until the regular appropriations acts are enacted.” (The United
States Senate. “Continuing Resolution.” n.d.
<http://www.senate.gov/reference/glossary_term/continuing_resolution.htm> Web. August 6, 2015.)
67
American Immigration Council: “Reagan-Bush Family Fairness.” p. 2 ll. 30-31

35!
President George H. W. Bush
The case of President Bush and his executive leadership related to The Immigration Act
of 1990 bears incredible resemblance to that of President Reagan examined above. The
question of ineligible spouses and children of individuals eligible under IRCA did not settle in
Congress after the INS Family Fairness program was implemented. 68
In the midst of congressional deliberations on new immigration policy, President Bush
took action regarding undocumented family members related to individuals who had become
American citizens under IRCA. On February 2, 1990 President Bush acted very similar to
how President Reagan had acted just over two years previously: He ordered the INS
Commissioner, by then Gene McNary, to expand Reagan’s Family Fairness policy. McNary’s
memorandum said: “Voluntary departure will be granted to the spouses and unmarried
children under 18 years of age, living with the legalized alien, who can establish that they
have been residing in the United States since on or before November 6, 1986.”69
A number of
criteria applied, but McNary’s memorandum clearly expanded Nelson’s 1987 Family Fairness
program. Importantly, McNary’s memorandum also stated: “Work authorization will be
granted to aliens who qualify for voluntary departure under Paragraph One and as provided in
Paragraph Two,”70
a clear attribution to Nelson’s Family Fairness provisions.
The American Immigration Center report shows that the media praised the INS, and as
such President Bush, for the action by writing that it was: “not an extension of amnesty,
which would have required legislation […] This response by the INS is in line with traditional
policy to favor immigration that reunites families.”71
In October 1990, Congress finally
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
68
Reimers, David M.: Still the Golden Door. p. 255 ll. 30-32
69
Gene McNary: ”Family Fairness: Guidelines For Voluntary Departure under 8 CFR 242.5 for the
Ineligible Spouses and Children of Legalized Aliens.” February 2, 1990.
<http://cdn.factcheck.org/UploadedFiles/2014/11/McNary-memo.pdf> Web. March 30, 2015. p. 1 ll.
17-21
70
Ibid. p. 2 ll. 24-26
71
The Washington Post: ”Amnesty and Compassion.” February 6, 1990.
<http://pqasb.pqarchiver.com/washingtonpost/doc/307234315.html>!Web. March 31, 2015.!

36!
agreed on the provisions of the Immigration Act of 1990, which encompassed the new
deferred action implementations presented in McNary’s memorandum. On November 29,
1990 President Bush signed the Immigration Act of 1990 into law.
I.IIII Conclusion
Article II of the Constitution is both vague and ambiguous in its provisions of power
related to the executive branch. Accounts and studies of the debate before, during and
following the Constitutional Convention all concur that there existed a strong divide between
Federalists and Anti-Federalists. Tatalovich and Engeman illustrated that these two political
factions differed in their convictions when it came to the size and reach of the American
federal government, and especially on the powers of the executive branch. While Federalists
wanted to vest significant power in a president, the Anti-Federalists wanted to minimize the
amount of unilateral power vested in the office. Both factions feared the rise of tyrants and a
political system, which would mimic that of Great Britain. A compromise was reached, but
the divide still persisted after the Constitutional Convention, and perhaps even still continues
to do so today, although the American political factions today operate under different names.
Original intent, as Tatalovich and Engeman examined, remains a constant source of debate in
American politics.
Different interpretations of Article II and the provisions of presidential power have laid
the foundation for a rather elastic office, which can expand and diminish in power according
to who occupies the seat in the Oval Office, as both Tulis and Laracey exemplified. There is
however consensus on the fact that today’s rhetorical presidency most likely deviates from the
style of leadership the Framers envisioned. Factors such as modern technology have changed
the world and the American political system to be one, where members of Congress and the
president are all rather closely connected to the public. This close proximity has undoubtedly

37!
led to the powerfulness of the executive office, and paved the way for increased executive
action.
Neustadt’s theory regarding presidential precedent too shows that the American
presidency is every changing, and that many presidents derive authority from previous
administrations’ use of power.
At no point in time is the question of original intent and executive power more up for
discussion than when a president presents action on a certain area, which can be said to
circumvent Congress’ deliberative process. Announced in November 2014, President
Obama’s executive order on immigration was both criticized and applauded. Members of
Congress who opposed the action argued that the action was unconstitutional and
unprecedented. Proponents argued that previous actions carried out by Presidents Reagan and
Bush provided the necessary legal precedent and that President Obama’s action therefore was
within the law.
However, when studying Presidents Reagan and Bush’s actions, the reality of the
relation between the three acts of presidential authority becomes somewhat complicated. Both
Presidents Reagan and Bush examined executive power to the extent that President Obama
did in November 2014, but many differences exist. President Reagan’s executive order
became the basis for the INS Commissioner’s memorandum, which implemented changes to
the newly passed IRCA. A continued resolution, which sought to defund the implementation
of these changes, was struck down in Congress. President Reagan’s action thus amended
already existing legislation, and was approved by Congress. President Bush’s executive action
too instructed the INS Commissioner to implement changes. These came in the midst of
Congress debating the passage of a new immigration act. When Congress later that same year
passed the act, President Bush’s actions were part of the bill. Both instances thus relate to

38!
new, or impending legislation, where President Obama’s does not. The following chapter will
analyze President Obama’s 2014 executive order in detail and assess its constitutionality.
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II. President Obama’s Executive Action on Immigration: Misuse
of Executive Power?
When Barack Obama took office in January 2009 voters had enormous expectations for his
leadership. His campaign, which had been dominated by the slogan “change you can believe
in” rightly made many Americans believe that his mere presence in the White House would
turn the country around, and bring it back to more ideal days of the past. However, supporters
of President Obama soon found themselves disappointed by his inability to enact the change
he promised. The disappointment stemmed from both unreasonably high expectations,
impossible to fulfill; and an increasingly polarized Congress, which proved a significant
impediment to President Obama’s legislative agenda during the later years of his first term.
At a 2008 election town hall debate in Lancaster, PA then-candidate Obama said: “I
taught constitutional law for ten years. I take the Constitution very seriously. The biggest
problems that we’re facing right now have to do with George Bush trying to bring more and
more power into the executive branch and not go through Congress at all, and that’s what I
intend to reverse when I’m President of the United States of America.”72
This statement
resonated with many voters, promising an integrity-filled presidency that would respect
Congress’ legislative powers. However, as often happens in electoral politics, this campaign
rhetoric fell away once President Obama assumed office.
Political observers on both sides of the aisle criticized the unilateral nature of President
Obama’s 2014 executive action on immigration policy. This majority of the criticism focused
not on policy specifics, but on the idea that such action is not within the President’s executive
authority. Some charged that the President had violated the constitutional separation of
powers and subjected the President to potential impeachment. Others praised the President for
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
72
Barack Obama: ”Town Hall Debate.” Youtube.com. Lancaster, PA. March 31, 2008.
<https://www.youtube.com/watch?v=a3IWq3CXHyc> Web. April 21, 2015.

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