The Supreme Court Decision That Could Change the Presidency


It will be a monumental decision either way: one that has the potential to shape national politics and public policy for decades to come. And don’t be fooled into thinking it’s just about U.S. immigration policy. It is much bigger than that.

The U.S. Supreme Court has agreed to decide whether it is legal for a sitting president to issue an executive order that changes existing law, thus bypassing Congress, the branch of government empowered to make the laws.

The case at the center of the dispute has to do with President Obama’s unilateral action, taken in late 2014, to shield from deportation up to 5 million immigrants living here illegally. Obama maintains that he legally acted under his own authority because Congress had done nothing to reform the broken immigration system.

Twenty-six states quickly challenged the idea that an American president can simply issue an independent decree that is that far-reaching. To date, the states have won every round in court. Now, the U.S. Supreme Court will hear arguments, and a ruling is expected in June.

This column isn’t about the nation’s immigration mess. It’s about the highest court in the land deciding how much power a president should be able to wield. This should be of vital interest to all citizens.

Every president issues executive orders. The question isn’t how many each president produces. The important thing is the (SET ITAL) content (END ITAL) of the orders and whether they encroach on another branch of government’s authority.

If the high court decides against President Obama it seems unlikely that any future president would try to unilaterally make sweeping new policy via executive order, be it on immigration or anything else.

On the other hand, if the justices decide in Obama’s favor then the checks and balances the Founding Fathers insisted upon will be shattered. Succeeding presidents would have a green light to disregard one of the three main branches of government. The executive branch could bypass the legislative branch and do what they want via executive fiat. If there’s a dispute about an executive order the president would take his or her chances with the judicial branch.

This is exactly what’s happening now. Congress, those senators and House members we voted to represent us in Washington, is out of it, and the courts will decide whether President Obama overstepped his authority on the immigration issue — or not.

Frankly, with all the partisan obstinacy and lack of accomplishment in the U.S. Congress we probably should have seen this showdown coming.

If the Supreme Court upholds Obama’s action future presidents could order up a shift in any number of major issues and the citizenry would simply have to adjust.

A stronger, more omnipotent Internal Revenue Service? More secret Internet and cellphone information gathering? Yep, the president could issue an executive order and it would be so. An increase in the minimum wage for a preferred group of workers? No vote from Congress needed. All it would take is a presidential executive order.

Certainly there would be the predictable and hugely expensive court challenges to each of these hypothetical actions. The biggest winners? The lawyers.

The expected timing of the Supreme Court ruling is vitally important. The decision is to be announced just a few weeks before the national conventions where Democrats and Republicans will nominate their presidential candidates. The final few months of this already divisive campaign will certainly feel the effects of the ruling.

As voters pick from among the candidates they should view their choice through the lens of the high court’s decision. Is their choice likely to go rogue, as a majority of states say President Obama has, and work around Congress instead of with it? If so, realize that means many more years of contentious and ineffective governance.

Perhaps the rogue scenario is OK with you. After all, if Congress isn’t going to step up to the plate maybe it’s a good thing to have a more powerful president to get things done. But that is, assuredly, not the system the framers of our U.S. Constitution had in mind. Three branches of checks-and-balances government have worked for more than 240 years. It is not the system that’s broken. It’s who has been in charge in Washington — on both ends of Pennsylvania Avenue. We deserve better leadership.

Rockland resident Diane Dimond is a syndicated columnist, author, regular guest on TV news programs, and correspondent for Newsweek/Daily Beast. Visit her at or reach her via email

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