fall son and a sith lord with a killing machine. it opens december 18, 2015, inside story is next on al jazeera america. >> when the framers wrote america's operating manual in 1789 it made it hard for any one branch of government to run out on its own and make law. is that what president obama did on immigration enforcement? it's inside story. >> hello, i'm ray suarez. the pendulum has been swinging

for 225 years. presidents grab power and added to their sizeable satchel of power. one president specs late on something being legal because the president did it, a successor accumulates power often with the cover of war abroad and security concerns at home. when president obama told the country he was going to put some people at the back of the line for deportation he set off a firestorm of invective and speculation on usurped powers, dark hurtings about kings and emporers. we'll look at the power of the executive this time on inside story, it's limits, potential and opposing powers from congress in the courts. >> the ink was not even dry on the executive orders on immigration when speaker of the house john boehner lashed out.

>> the president has taken actions that he himself have said are those of a king or emperor not an american president. >> the president fired back at a rally in las vegas promoting his action. >> it has now been 512 days, a year and a half in which the only thing standing in the way of that bipartisan bill and my desk is southern california that i could sign that bill, the only thing that's been standing in the way is a simple yes or no vote in the house of representatives. just a yes or no vote. if they had allowed a vote on that kind of bill it would have passed. i would have signed it. it would be the law right now. >> as i warned the president you can't ask the elected representatives of the people to trust you to enforce the law if you're constantly demonstrating

that you can't be trusted to enforce the law. >> the white house has called 2014 a year of action where the president would use his pen and his phone to push his agenda when his policies are blocked in congress. one example, regulations on coal fired power plants put forward by the epa. it's long been a goal to close the guantanamo bay detention facility when taliban fighters were held there to gain the release of bow bergdahl without first notifying congress. that only deepened outrage and mistrust from some on capitol hill. while guantanamo bay releases continue, there have been 13 so far this year, it's long been the case that the president's exercise of executive power, president bush used it to go to war and ramp up intelligence

gathering. president obama has largely maintained the bush-era stance. congress can pass laws to rein in presentation action and override the president's vetoes if they can muster enough votes. the supreme court can check the power, too, as it did last term ruling he exceeded his power when he made recess appointments when the senate was technically in session. expect fights ahead when the new republican congress was sworn in january. er sued over federal court over changes that barack obama made to the affordable care act and the immigration issue is not going away any time soon. >> all year long i've warned the president by taking unilateral action on matters such as the healthcare law or by threatening action repeatedly on immigrati immigration, he was making it impossible to build a trust necessary to work together. i'm not giving up. i will an never give up.

>> when has the president acted on his own in the past? when has it stuck? and when have the branches pushed back? is executive action really a product of the 20th century of chief executives at the helm of a superpower more than the 19th century when the president of the united states often seemed like a mere mortal. joining me for that conversation, assistant professor of government at american university. professor of american politics at the university of chicago. and research fellow at the kay toe institute studies institution. let's look at the near end case of the president's announcement that he would stop sending home people who met certain specific requirements and profile?

was he just making up powers that he didn't have? >> i don't think so. i think its debatable. but he made a case that he may pursue on statutory security that are much more questionable, but this is really overblown in the context of immigration action. >> the deapartments that enforce immigration law are under his purview as the head of the executive branch, isn't it? >> that's true. the key point hire is he could have claimed, as you suggest, some kind of article two constitutional authority act. he's claiming and there are statutory language to support that, that congress pass the law. the president has discretion to set priorities, and that's what he's doing. it's not a slam dunk case but there is a plausible argument that he can make this is following congress' lead. >> did he make that plausible argument?

>> he got close. it's unseemly to say the least, and this is as close as he can get. everyone agrees, everyone who matters in the debate on either side that at some point the president stops enforcing some law it would be pure an decation and it would not be doing his duty. he does say in the statute that he has discretion but it also says that he has to do it on a case by case basis. there it's not clear. the memo spends a lot of time explaining that it's a case by case basis, and it's a rubber stamp of four people who are let in. >> rather than looking at every individual he's creating classes that consist of a lot of people. >> if you read the immigration statutes it would list people who were at loud to come in. nazis were one of them. war criminals, things like that, he's making a new class of seems-like legislation. >> has this come up in your

class, professor howell? is this something that gives you an illustration, a handy illustration as you're teaching students about how all this ought to work? >> this strikes me of a classic case of how presidents use these powers and when presidents act unilaterally. for all the talk about this being unprecedented and an illustration of imperial powers this is what presidents regularly do. they intervene where the adjoining branches are stuck, congress is gridlocked, and they move policy that congress can't legislate in a direction that congress subsequently is willing to amend or overturn. it's these spaces in between that they exercise these powers and that's exactly what obama is doing here. >> is that usually where the courts come in, where they act

as a space filler and referee? >> yes, and they're often called in. the vast majority of the time when they're asked to referee these cases they either step aside saying this is a political issue and they're not going to get entangled, or they side with the president. they have strong constitutional reasons to get hyped the president. but there are moments where they will overturn actions taken by the president or refuse to allow powers granted to the president stand. a recent case of this was the line-item veto in which clinton held for a few weeks, and then it was promptly taken away by the courts. yes, the courts and congress play--they both play important arrives of how these powers are exercised. but what is really in play or set of political consideration. there are legal considerations that under gird the conversation, but what obama is doing is he's placing a bet that he can change policy, and that congress is going to lack the

votes, the republican majorities are going to lack the votes to overturn him, and the courts are going to stand by the side. >> trevor, it seems that professor howell's version of the case will not stand. >> we need to criticize this adequately, and i agree it's close to being legal. even a dog knows he can misbehave when he's not being catched. if i were to advise the president i would say, most likely no one can check you on this, but at different times in the past, george h.w. bush, someone said maybe you can index the capitol gains tax that congress was not going to pass. he said, no, i'm not going to do that. every time it's a new baseline you have to think about the rule and it's a libertarian rule. always imagine the power in the hands of your worst enemy, and asked if you want to give that to rand paul in the same way. we should be criticizing this. and obama's theory of executive

action is more disturbing. he does not have a banman date when congress doesn't act. ithis is going way too far. >> professor, is john boehner and is mr. mcconnell on more solid ground when they say that adding provisions and subtracting provisions and changing the date of applicable for parts of the affordable care act was constitutionally dodgy? are they safer ground on that argument than they are in prosecutorial-- >> yes, of course, all odds of specific provisions and it's been recognized. all president obama is doing with the affordable care act is saying i'm going delay

implementation. there's actually very simple solution here. it's been suggested there are no checks. they gave a speech to the floor saying that the president is a tyrant. that's preposterous. if congress wants to limit what the president does it can simply change the law. they can say well, we've given you discretion. it's debatable how far the discretion goes, but change it. >> what about the point that there is no obligation for congress to act just because the president says-- >> but they have acted. they passed 1952. it was amended to give us the to the department of homeland security. it said that the homeland security has discretion. there is a law. it is not a blank slate.

it exists. it's a statutory claim. congress has a very easy way to respond. change the law. they have other actions. they could cut off spending but the easiest is legislation. >> quickly, professor howell. >> i think that congress has options. congress can overturn and amend. they have lots of options post talk. it is also clear, though, these congressional limits are in play because obama is not getting everything that he wants. it's quite clear if he has his druthers that he would go farther than he currently is. when we think about how healthy legislative checks are, we should also look at how much the president is getting as a function of what he would like. >> we'll be back with more inside story after this short break. over the last century has the freedom of movement of the president, the assumption of power seen in executive action waxed and waned with the occupant of the joel office and the situation with the rest of

the world. stay with us.

>> you're watching inside story. i'm ray suarez. we're talking about executive action this time on the program in the wake of president obama's decision to move on his own, to adjust the machinery of enforcement of immigration law. over time has presidential power to move unilaterally risen and fallen with the president himself trevor, has there been chief executives who have said, oh, here is an opportunity for me. let me grab more chips? >> every single one since world war ii. it's vary that you have to go back to grover cleveland who refused to use fema o.

it's this theory of let's steel everything that is not tied down, and it grows with the administrative state. it makes most of our laws in the sense of regulations and it has power over those who don't have independent agencies. so now the power is quiet vast. >> are we able to move forward to world war ii, either to the depression era acts of fdr or even as back as far as the decision to make war in spain grow the government during the prerogative era, and then go to war to save europe? >> certainly by the time the presidents will play a role in shaping the government, you see

this huge accrual of power. it's true that presidents claim power at every turn. much of the power they have has been handed off to them by congress, and presidents again have powerful political incentives to guard what powers they have. you talked about a pendulum, and i'm not sure that's right. because once the powers are granted to the president, they'll do everything they can to hold onto them, and congress is pretty week about guarding it's own legislative prerogatives. >> after hitting a crescendo, wasn't there an attempt to pull back some power over to congress over presidents ford and carter? >> you see that with efforts in the early 70s, to reclaim powers. those were laws written but were not clearly laws faithfully and continuously implemented. and certainly by subsequent president who is were unwilling

for institutional reasons of their own to stand up and do for congress what congress won't do for itself. i want to make one note which is presidents have--when they don't act, when they don't intervene and claim powers, we look at presidents who in the face of big problems refused to exercise the full powers of their office, they're punished politically in ways that can be really profound. again, they have big political incentives to claim guard and nurture their power at every turn. >> professor, do you agree that under playing your hand get punished? >> i think there are legal questions. i think presidents can act independently where it is dangerous. i think that th--when is the

last time that the united states declared war on another country. >> world war ii. >> or committed troops under the war powers act. >> president obama does not say the say it does not apply. the action he said he was using at first, and then ultimately concluded that it did not apply. iraq in 2013 2003, and you're right, largely since president truman presidents in both parties have ignored. congress can be acquiescent. and it needs to be changed. >> we have a cult of the presidency. we have people who think tha that--pretty much the american people expect too much from our

president. there could be a good use of the king. it would be good to separate the head of state from the head of government. in england you have the head the state. and they embody all the patriotic whims, and head of government, he's just a politician and we can throw them out and make fun of them. here we have both of them. they have to be were hero, and go in and do things that congress is not able to do, but we ask them to do it. it's the cult of the presidency, as it's been talked about inside my book. >> what powers do congress and the courts have at their disposal when they decide the chief executive has gone too far or exceeded the letter of the law. stay with us. primetime news. >> welcome to al jazeera america. >> stories that impact the world, affect the nation and touch your life. >> i'm back. i'm not going anywhere this time. >> only on al jazeera america.

>> we're back with inside story on al jazeera america. i'm ray suarez. in recent decades certainly in the 20 years i've been in washington, there has been a lot

of complaining about presidential power, lack of consultation with congress, threats to restrain the chief executive, but they haven't amounted to much, especially when the complaints come from the president's own party. this time its republicans angry at a democratic president. still with us, author of emergency presidential power and professor at american uniform. william howell, author of power without persuasion, the politics of direct presidential action. he also teaches at the university of chicago. and trevor burress, a research fellow at the c ato institute's studies. professor, you heard just before the break that we're part of the problem. we build up our presidents and make them into serially elected super men. if the people of the country, not just congress, wanted to bring them down a notch or two, and they had the congress in the courts with them, what tools are

at their disposal? >> well, i think he's right the foundational issue at play are the broad expectations that they have of the president, and they'll act and solve every problem of every conceivable nature. and it's congress and courts are responding, too, when they lay down. now that said if public expectations shift we could expect congress to be more vigorous in its ability to hold hearings, to provide various sources of oversight. the occurrence in turn may become more aggressive. you noted early yes we saw a bit of this, and you see in the aftermath of major wars, an effort by congress to reclaim some powers that had been willingly granted during that conflict. so there is push and pull. the big trends, though, point

towards presidential ascension, and i think that it's right. i'm not sure that i would call it a caught of the presidency, but there is a sense in which the public's expectation lay the groundwork for the dynamics that we're observing. >> doesn't everybody want the president to say, okay, i've got the bit in my teeth and i'm resolutely leading the country forward after a 9/11, after an attack on american interests somewhere else in the world. >> they may. the framers of the constitution rejected that kind of system. broke with the british system. we don't have a monarch. we have a president with limited power, congress and the court. can people do anything about this? they can. in the summer of 2013 president obama was ready to attack syria. nothing good to say go syria, but president obama was ready to act alone. he didn't. why not?

because 150 members of congress said that you do not have power to act and public opinion was against him. >> and he was heartily chris sized. >> i thought it played out well for him. actually, it created the speech for diplomatic solution for it to work in the time being. to me what i took away from that we hear about congress being weak. the president can do what the president wants. no. this shows when congress wants to act they can. they need to resolve. i think they're wasting their resource ross on the immigration battle and i wish they would turn it to the security front, and they could succeed if they would reassert themselves. >> we get either party candidates who say you know, i'm going to be a constitutional president. and work under the limited powers of the restrained powers by other branches that are in the design of our government. is that person going to get collec elected president? >> it would be announcing

because all of us in the pundastocracs would say, well, the last guy did it. what can happen is that congress can stop delegate something much power to the executive. some of the wordings in the statute are unbelievably broad, but the problem is they want to. they want to give the power to the president, then blame him if this doesn't go well and take credit if it goes correctly. and don't forget about the courts. we saw the supreme court give a pretty big bench slap to say that the president is not allowed to do this. and then the theory to force appointees through was because the congress didn't act. it was the same in the immigration. saying that congress had an obligation to act. courts said no, congress discuss not have to approve anybody. and you don't have the power to go around anyone. >> it sounds like presidential

power from everything all of you have said during the half hour just moves in one direction. up. >> not always at the same pace. there are moments where it's stalled but i think a lot of political forces point towards presidential power expanding over time. you had in obama former constitutional law professor from the university of chicago made claims himself that we ought to respect and honor constitutional limits on the exercise of presidential power. once he assumes the office he's subjected to all signed of powerful incentives to act, and that's what we've seen similar do. >> that brings us to the end of this edition of "inside story." thanks for being with us. the program may be over but the conversation continues. we want to hear what you think about presidential power now or in our past. you can log on to our facebook page. send us your thoughts on twitter. the handle is aj inside story

am. i'll see you for the next inside story news. in washington, i'm ray suarez. very few people get up in evil. what evil can i do today? >> he wrote the epic novel, a song of fire and ice, the basis for the hbo series "game of thrones" now in its fourth season, george r.r. martin is working fotin issue the series. >> there are days i wonder if i bit off more than i could chew. did it have dotcoms? >> his characters are often consumed with power struggles making them blind to the greater threats to their kingdom did. found. >> we have thigo