It is no surprise that opponents of President Obama are criticizing his use of the executive order to dictate what a federal agency will or will not do. But his growing list of executive orders - which includes his decision not to defend DOMA and allowing some states to bypass the educational policy No Child Left Behind – is also raising the eyebrows of legal scholars.
"He [Obama] is upsetting the balance and separation of power when he ignores federal law," says attorney and legal scholar David French, a Harvard Law School graduate and vocal longtime Mitt Romney supporter. "If the legislature passes laws that are seen merely as 'suggestions' by the White House, and by executive order he chooses to override them, then we have a larger legal and constitutional issue on our hands."
Last week, Obama announced that he would use the power of an executive order to immediately change the U.S. immigration law so that young, undocumented people – those who came to the U.S. before age 16 and are now no older than 30 – will not be deported and can gain a temporary permit so they can live and work in the U.S. legally.
"If the president says we're not going to enforce the law, there's really nothing anyone can do about it," University of Pennsylvania constitutional law professor Kermit Roosevelt told Politico. "It's clearly a political calculation."
Legal obstacles aside, the White House maintains that such executive orders are necessary for one simple reason: that Congress refuses to give the president what he wants.
"We work to achieve our policy goals in the most effective and appropriate way possible," a White House official, who asked not to be identified, told Politico.
"Often times, Congress has blocked efforts (i.e. No Child Left Behind and DREAM) and we look to pursue other appropriate means of achieving our policy goals. Sometimes this makes for less-than-ideal policy situations – such as the action we took on immigration – but the president isn't going to be stonewalled by politics, he will pursue whatever means available to do business on behalf of American people."
However, French believes the White House is overstepping its authority and is setting the stage for a complicated and convoluted legal battle. "The president ignoring federal law is dangerous in many ways, but there are two of particular importance:
"First, it creates a constitutional problem between the separation of powers. Second, it creates a constitutional problem without a clear remedy."
French points out that rarely do you see a court mandate a president to enforce a law. "It's not to say that it's never happened before, but it happens only in the rarest of circumstances," he said.
Other legal experts say that while a legal precedent may exist to challenge Obama on some of his executive orders, there isn't much hope that anything will happen prior to the general election in November. However, some agree that if Obama is reelected to a second term, then lawsuits could be filed in federal courts asking him to enforce laws already in federal statue.
While DOMA and other issues may be challenged, Obama's most recent position on immigration could place a future president such as Mitt Romney in a precarious and uncomfortable position of having to rescind the order, thus creating additional friction between a new administration and the Hispanic community.
"A Romney administration would not impose his personal agenda outside of the will of Congress," maintains French, who along with his wife, Nancy, heads up the group Evangelicals for Mitt. "The issue is if we effectively grant amnesty before we establish a solid immigration policy, we put ourselves in a dangerous position as a country, and that in essence is what President Obama has done."