With U.S. District Judge Hansen’s blocking of President Obama’s executive action on deportations, the profound consequences of Obama’s amnesty once again is front and center in the media. And it should be. The lawsuit launched by a coalition of 26 states, conservative more than not and southern more than not, has found an ally, at least for now, in the judicial system. Acknowledging the irreversibility of the amnesty, should it become actual policy which is to be enforced, Judge Hansen reminds us that immigration policy is at a point of no return. Not only for the millions of illegals who will become legals, but also in terms of the constitution itself and what executive action should and does mean.

At the core of the lawsuit is the so-called Take Care clause of the constitution: that the President has a duty to faithfully execute the laws. Section 3 of Article 2 has been open to interpretation, as they say, and has been the subject of interpretations that would severely limit the President to merely faithfully overseeing those charged with executing the law, to those interpretations that say the President has substantial leeway to decide when and how any law will be executed. History has many examples of the executive delaying implementation of laws or not enforcing a law every time there is a violation.

Obama’s amnesty has placed the issue of the modern US Executive Power in a harsh light. Schlesinger’s Imperial Presidency has been with us since Roosevelt took power away from the Cabinet and built up departments and offices of advisors that are the real power behind the throne, with some exceptions when a Cabinet figure is an unusually strong willed personality. But even then, the West Wing always seems to win. And now we have what is essentially a presidential pardon for nearly 5 million lawbreakers because of “commonsense policies to help fix our broken immigration system” in the words of Josh Earnest. The lawsuit launched by the 26 states seems to clearly suggest this is a complete abandonment of the Take Care Clause, while on Obama’s staff, the legal minds are likely to put together a defense suggesting the Take Care Clause allows such flagrant behavior on the part of the President. To allow a pause to legally consider the constitutionality of the amnesty before enacting such a massive pardon seems to be the real commonsense policy. And if a weaker executive emerges from this lawsuit, so be it.