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February 15, 2018


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I assumed executive orders in the US served the same role and form, i.e., the president of the US issues an executive order that becomes permanent after a certain period under (potential) review.

From my limited understanding reading about EOs quickly it seems there are more limits to Executive orders in that they cannot contradict existing legislation or the Constitution. Is that the key difference? What's the difference between Trump's Immigration EO and Macri's (Hawaiian jusges aside)?

Apologies for the delay. That's a good question.

Executive orders cannot change legislation. They are only orders to the executive branch about how to carry out legislation. Their scope is limited by the "take care" clause of the Constitution, as in, "He shall take care that the laws be faithfully executed."

Consider DACA, which has been in the news recently. How did President Obama suddenly make 1.3 million people eligible for working in the United States? He couldn't change the law the way an Argentine president can. Rather, he had to be creative.

Existing law only provided enough funding for 400,000 deportations per year. (I'm working off memory, so I'll check this number later.) That meant the executive branch had to decide whom to deport. The law also allowed the executive to issue renewable work permits to undocumented immigrants who had been apprehended but for whom deportation proceedings had not started. Congress did that because otherwise the detainees would become a charge on the state.

So the DACA executive order told ICE that it should not begin deportation proceedings against people who met certain characteristics. Since that created an identifiable class of people not subject to deportation, the order went on to state that they be granted work permits, as under existing law.

The legality of this isn't 100% clear. Can the president really exempt an entire class of people and then issue them pre-emptive work permits? The counterargument used by DACA opponents is that the law only allows the President to exempt immigrants from deportation and grant work permits on a case-by-case basis.

That said, the executive order changed no legislation and is only subject to Congressional review in the sense that Congress can change the underlying law. All it did was order ICE how it should enforce the existing law.

An Argentine president who wanted to accomplish the same thing would have no need to jump through all these legal hoops. She would just declare that it is necessary and urgent to stop deporting immigrants brought to Argentina as children, change the law to that effect, and rely on her allies on the joint standing committee to avoid a Congressional vote.

Does that clear up the difference? You've got the basic idea, but as always it gets complicated. And I haven't even mentioned the independent regulatory agencies ...

Thanks, it's much clearer now.

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