At 12/16/14 07:58 PM, RydiaLockheart wrote: A federal judge in Pennsylvania found Obama's executive order unconstitutional.

This is actually very silly, because the question of whether or not the EO is constitutional has absolutely nothing to do with the case he made a ruling on. He just sua sponte declared the EO unconstitutional. He may as well have said Obamacare and the Federal Reserve are unconstitutional as well. Both would have been equally irrelevant.

I realize other presidents (Truman comes to mind) who have used executive orders have later had them declared unconstitutional by federal judges. I have two questions though:

1. Reagan and Bush 41 also rewrote immigration law through executive orders. What makes theirs constitutional and Obama's not?

2. When is an executive order unconstitutional? I realize this is a broad question, but what makes some OK and others not? Is there something in common?

The short answer is that Obama's EO is not unconstitutional.

The long answer is that there is a litany of procedures Congress has to follow in order to demonstrate that an EO is illegal. This article from the WP has a good rundown. The TL;DR version of this is essentially Congress would need to demonstrate that the issue in question could be resolved politically first; since we're making the assumption that any EO in question caused institutional harm then you would expect Congress to actually be able to pass a bill that more or less accomplishes the EO in question. Now, in the instance of Obama's EO, Congress has demonstrated a complete inability to act on immigration, which rests entirely within the legislative branch, not the judicial branch. The courts have absolutely no interest in settling disputes between Congress and the Executive branch which can simply be resolved by an act of Congress. Which is why Boehner's lawsuit is really dumb: he can't demonstrate to the courts that the EO dispute cannot simply be resolved by passing an immigration bill, because that's the whole fucking point of the EO -- Congress hasn't done anything about it. The issue can only be resolved by a bipartisan act of Congress, not through the courts.