Constitution Daily

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Obama immigration executive orders could force showdown

July 30, 2014 by Scott Bomboy


Reports that President Barack Obama could use executive orders to enact immigration policies could force a showdown with Republicans with broad constitutional implications.

ice640Stories from the Associated Press, the Los Angeles Times and  Politico indicate that the White House is considering using executive orders, a tactic already heavily criticized by Republican leaders, to defer some deportations and expand work permits to currently illegal immigrants.

With House Republicans already set to sue President Obama in federal court over what are seen as executive abuses of power over the Affordable Care Act, such aggressive actions from the White House wouldn’t go unchallenged.

But the big question is how would the GOP challenge immigration reforms through executive orders on constitutional grounds?

Josh Gerstein from Politico went over some of the legal roadblocks to a GOP challenge in an extensive story on Tuesday.

“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,” said Gerstein.

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, recently explained this issue of standing in a Constitution Daily analysis for readers.

“The Constitution’s Article III has a simple requirement that must be satisfied by any lawsuit that is filed in federal courts, and it is a make-or-break requirement. If the lawsuit does not involve a genuine ‘case or controversy,’ under Article III, a federal court simply has no authority to decide it,” he said.

“Because of Article III’s requirements, there are three things that an individual or institution must prove – up-front – before such a lawsuit could go forward in federal court. The suing party must first show that the other side has caused it an ‘injury in fact’ – that is, a genuine harm, not a fanciful or theoretical harm,” Denniston said. “Next, there has to be proof that the other side caused that injury. And, finally, the injury must be of a kind that the court can remedy by ruling in favor of the suing party.   Those three requirements are what lawyers and judges refer to as ‘standing’ requirements – that is, a right to sue in federal court, in keeping with Article III.”

John Yoo, a law professor at the University of California – Berkeley and a former deputy assistant attorney general, has written extensively with Robert Delahunty about the subject of the non-enforcement of immigration laws and the Obama administration’s use of “prosecutorial discretion.”

In research from March 2013, Yoo and Delahunty said that the “President's claim of prosecutorial discretion in immigration matters threatens to vest the Executive Branch with broad domestic policy authority that the Constitution does not grant it.”

They argue that the current or a future President could use the same logic to not collect taxes or not enforce environmental laws, and that the President has a responsibility under the Constitution's Take Care Clause “to enforce all constitutionally valid acts of Congress in all situations and cases.”

However, they also don’t believe the House or Senate would have Article III standing to sue the Obama administration over non-enforcement decisions, but the Congress could remedy the situation through its legislative powers.

Because of the timing of such potential immigration moves by the White House during a contested mid-term election, the subject of impeachment has come up from some conservatives -and from the White House.

Fanning the flames were comments from White House adviser Dan Pfeiffer last Friday that he wouldn’t “discount the possibility” of a drive by House Republicans to impeach President Obama over potential immigration moves.

But Republican leaders seem reluctant to bring up the subject of impeachment, a measure that is part of the House's enumerated powers in the Constitution.

Political observers believe that Republicans could fear that impeachment talk would spur more political donations to Democratic candidates in the November election.

"We have no plans to impeach the president. We have no future plans," Boehner told reporters on Tuesday. "It's all a scam started by Democrats."

So for now, the constitutional showdown remains a war of words. But as the Los Angeles Times reported last Friday, the executive orders on immigration could come by the end of the summer, forcing a public showdown between the White House and congressional Republicans.

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