Barack Obama's
immigration moves could be unstoppable
By: Josh Gerstein
July 29, 2014
05:07 AM EDT
Even if President Barack Obama tests the bounds of his
presidential power with the big, unilateral moves he’s promising on
immigration, there may be no way to stop
him.
Lawyers are debating the legality of a series of
immigration-related executive actions the White House is reportedly
considering, but there’s broad agreement suing the president isn’t likely to
work.
“The court route: I don’t see it,” said Jan Ting, a top
immigration official under President
George H.W. Bush who opposes Obama’s expected moves.
Legal experts see any challenge to the expected
immigration policy changes headed for the same key roadblock facing House
Speaker John Boehner’s planned suit over
Obamacare implementation delays: finding a way to show the injury needed to press a case in the federal courts.
(_Also on POLITICO: Moms winning the Common Core war_
(http://www.politico.com/story/2014/07/the-common-core-pr-war-109460.html)
) “There isn’t really anyone who would be in a position to complain,” said
Hiroshi Motomura, a University of California at Los Angeles law professor
who favors several of the options Obama
is considering.
The lack of a clear path to challenge the president’s
expected moves to give more illegal
immigrants work permits and relief from deportation seems certain to fuel howls from Obama critics that he’s as
much an imperial president as his
predecessor — who was often criticized by Obama and other Democrats
for overflexing his presidential muscle.
Responding to inaction in the House on immigration
reform, Obama has signaled to
immigrants’ rights advocates that he plans to take significant new
executive actions next month to overhaul
the immigration system. They could range from
reordering the priority list of deportation cases to dramatically
expanding the “deferred action” program
he initiated in 2012, which allows immigrants who entered the U.S. illegally as children to
apply for a two-year deportation
reprieve.
That could mean allowing millions of family members of
so-called DREAM-ers to get work permits,
or perhaps allowing giving work permits to even broader groups, such as undocumented immigrant
parents of U.S. citizens or virtually
everyone who’s not considered a high priority to deport.
(_Also on POLITICO: The knock-down, drag out fight that
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“This notion of extending DACA [Deferred Action for
Childhood Arrivals] to parents, who were the ones who consciously violated the
law, strikes me as ridiculous,” said Ting, now a law professor at Temple
University. Obama “ has defaulted on his
constitutional obligation to faithfully execute the laws.”
However, other experts say most lawyers in the field
believe Obama has few restrictions on his ability to decide how and when the
U.S. deports immigrants.
“There is, I think, a general consensus that his
authority to take executive action is
fairly wide as long as it is based on executive branch authority to use prosecutorial discretion to decide how
people are treated who are subject to
deportation,” said Doris Meissner, Immigration and Naturalization
Service Commissioner under President
Bill Clinton.
“He’s got a continuum of options from a fairly narrow
reworking of deportation priorities all the way to a new program of some kind
that would allow more numbers of people
to apply for work permits of some kind,” she
added.
(_Also on POLITICO: The Michelle Nunn memos: 10 key passages_
)
What Obama has done so far on immigration and what he’s
likely to do in the future can be
justified on the theory of prosecutorial discretion, the long-standing
executive branch power to decide in which cases the law should be enforced, Motomura said.
“We have a system that runs on discretion. There are 11
million people in the country who in
theory are not supposed to be here. Congress has funded the capability to deport maybe half a million
people a year,” the professor said.
Motomura, author of “Immigration: Outside the Law,” said
he sees no legal bar to expanding the
deferred action program. “He could expand it to people who are closely related to those people who have been
standing in line to be approved,” the
professor said.
But Motomura said that doesn’t mean Obama has a
completely open path — nor are there
indications the president will attempt to break those boundaries.
(_Also on POLITICO: Ex-Im official pleads Fifth_ (http://www.politico.com/story/2014/07/export-import-official-johnny-gutierrez-pleads-fifth-109497.html
) )
“I think there are real constraints on him,” Motomura
said. “He cannot give people a permanent
immigration status. He cannot give people green cards.
He cannot bypass
the process … He cannot give people a path to citizenship.
”
Some Republicans feel the president doesn’t have as much
leeway as immigrant rights groups
suggest.
“If the President may constitutionally permit fifteen per
cent of the Nation’s illegal immigrant population to remain in the United
States without fear of removal, why may he not do the same for fifty per cent
of that population, or for all of it?” George W. Bush Justice Department
officials John Yoo and Robert Delahunty _wrote after Obama unveiled DACA in
2012_
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144031)
. “The failure of an agency to perform its ordinary enforcement duties may be
so unreasonable that it may be
considered unconstitutional, notwithstanding limitations on its resources. The
Constitution confers no express or implied power or authority not to enforce the laws.”
Boehner has complained publicly that Obama’s unilateral
moves on immigration are part of a
pattern of the president disregarding his legal duties. “ This is about him faithfully executing the laws of
our country,” Boehner said last month as
he announced House plans to file a lawsuit against Obama over alleged executive power overreaches.
Earlier this month, Boehner told reporters that he was
considering making Obama’s earlier immigration moves part of the lawsuit.
However, the resolution authorizing the
suit wound up referring to only the Affordable Care Act.
Asked about the absence of immigration from the planned
legal case, Boehner spokesman Michael
Steel said: “We considered a range of options — energy regulations, the
‘Taliban 5,’ various delays and changes in the health care law — but our attorneys advised us that this
narrowly tailored action had the
greatest chance of success.”
While broad immigration moves clearly have beneficiaries,
it’s hard to find a person or entity
harmed enough by under-enforcement to have the standing to pursue a case in court.
Immigrations and Customs Enforcement agents angry with
Obama’s deferred action program filed suit in federal court in Dallas in 2012,
alleging that they faced possible disciplinary
action for failing to comply with the program.
U.S. District Court Judge Reed O’Connor, a George W. Bush
appointee, ruled last year that Obama’s policy appeared to violate the law and
that the agents had standing to
challenge it. However, he _dismissed the case_
(http://www.law.uh.edu/ihelg/documents/Crane207-31-13.pdf) because Congress has passed another law putting such types of federal employee
disputes beyond the reach of the courts.
O’Connor’s ruling is on appeal to the 5th U.S. Circuit Court of Appeals.
Several legal analysts on both sides of the issue said
the political limits caused by House
Republicans’ opposition to more executive action, possible fallout for Democratic candidates in November
and the ongoing surge of child migrants crossing
the U.S.-Mexico border are more significant than any legal limits Obama faces.
“It’s really hard to see how they thread the needle on
this,” Meissner said. “This border issue
just keeps spinning up, spiraling in terms of the politics surrounding it … It’s hard to see where he’s
got the space to go to the more general
issues he wants to do through executive action.”
“He’ll reach his political limits long before he reaches
his legal limits,”
Motomura said.
While the border crisis raises the political risks for
the president, it could aid his legal case for discretion since an overwhelmed
enforcement system more readily
justifies sweeping exemptions than a system which is easily processing illegal migrants who are caught.
Not all conservative legal thinkers appear to agree that
Obama has exceeded his constitutional
bounds or could readily do so by limiting and refocusing enforcement of the immigration laws. Some experts
have pointed to the fact that while the
Constitution obliges the president to “take care” to enforce the laws, it also grants him an unfettered right to
grant pardons — which suggests wide
latitude not to enforce laws against certain individuals or categories
of people or perhaps even not to enforce
a certain law at all.
“The President may decline to prosecute or may pardon
because of the President’s own constitutional concerns about a law or because
of policy objections to the law, among other reasons,” D.C. Circuit Judge Brett
Kavanaugh wrote in _an opinion last year_
(http://www.cadc.uscourts.gov/internet/opinions.nsf/BAE0CF34F762EBD985257BC6004DEB18/$file/11-1271-1451347.pdf) about the Nuclear Regulatory Commission’s failure to comply with a law
requiring it to consider setting up a
nuclear waste dump at Yucca Mountain in Nevada. “ One of the greatest
unilateral powers a President possesses
under the Constitution, at least in the domestic sphere, is the power to protect individual
liberty by essentially under-enforcing
federal statutes regulating private behavior.”
Kavanaugh, who worked for independent counsel Ken Starr
during his investigation of President Bill Clinton and later served as a White
House lawyer and as staff secretary under President George W. Bush, didn’t
discuss immigration in his NRC opinion last year. However, he did suggest that
the president’s power not to enforce the law extends to civil matters — the
category the courts use for immigration cases.
“It is likely that the Executive may decline to seek
civil penalties or sanctions (including penalties or sanctions in
administrative proceedings) on behalf of the Federal Government in the same
way. Because they are to some extent analogous to criminal prosecution
decisions … such civil enforcement
decisions brought by the Federal Government are presumptively an
exclusive Executive power,” Kavanaugh
wrote.
Yoo said last week that he believes the pardon power
applies only in the criminal context, not to deportations.
“The President cannot wipe out a deportation decision no
more than he can wipe out a judgment for damages,” Yoo told POLITICO via email.
He noted that selective nonenforcement
of the tax laws, for example, could allow a president opposed to certain taxes to cut tax rates
unilaterally.
“If President Obama can refuse to enforce an entire class
of law, such as the immigration law,
against millions, because he dislikes the policy, why can’t the next President unilaterally lower tax rates
by refusing to prosecute anyone who only
pays a 20 percent income tax when Congress requires 33 percent?” asked
Yoo, now a law professor at the
University of California-Berkeley.
Kavanaugh argued in his opinion last year that the remedy
for abuses of the pardon power or of
failure to prosecute lies not in litigation but in “ public disapproval, congressional ‘retaliation’ on
other matters, or ultimately impeachment
in cases of extreme abuse.”
The idea that a big immigration move could ramp up calls
for Obama’s impeachment is probably a more critical calculation for the White
House than any potential lawsuit, Meissner said.
“I don’t think it’s really an issue of the legal
arguments. It’s really an issue of the
politics and whether any immigration action will feed impeachment or whether you might as well go big because
anything you do is going to feed it,”
she asked. “Can you take that risk?”
© 2014 POLITICO LLC
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