Presidential Legitimacy Through the Anti-Discrimination Lens

The Obama administration’s deferred action programs granting temporary relief from deportation to undocumented immigrants have focused attention to questions regarding the legitimacy of presidential lawmaking. Immigration, though, is not the only context in which the president has exercised policymaking authority. This essay examines parallel instances of executive lawmaking in the anti-discrimination area. Presidential policies relating to workplace discrimination, environmental justice, and affirmative action share some of the key features troubling critics of deferred action yet have been spared from serious constitutional challenge.

These examples underscore the unique challenges to assessing the validity of actions targeting traditionally disenfranchised groups—be they noncitizens, racial or ethnic minorities, or members of the lesbian, gay, bisexual, and transgender (LGBT) communities, for example. Just as prior generations grappled with the unique legitimacy concerns raised by judicial interventions to protect these interests, the current era of presidential lawmaking suggests the need for a distinct theory of legitimacy when the president acts to protect vulnerable populations.