by Terry Eastland     •     The Weekly Standard

obama-legislation executive orderWith his aggressive executive action on immigration, President Obama has struck a constitutional nerve in the body politic. The first lawsuit challenging the president’s action was filed last week by a coalition of 18 states led by Texas. Oklahoma is about to file, and other states may do so as well.

As for the two houses of Congress, House Judiciary Committee chairman Robert Goodlatte told The Weekly Standard that the House “should litigate the issue.” Probably a majority of his colleagues agree. Goodlatte expects that soon after the new Congress is sworn in, the House will authorize the filing of a complaint that the new Republican Senate will then vote to join.

A sense of urgency is evident on the part of the lawyers involved in this challenge to the president. Goodlatte wants Congress to ask for expedited review of its case, and already the legal arguments against the president are starting to take shape.

The fundamental complaint is that the president has violated the Constitution, in particular the separation of powers. The Constitution vests Congress, not the president, with “all legislative powers herein granted.” And under law duly passed by Congress (and signed by the president), anyone entering the country illegally is a deportable alien who “shall upon the order of the Attorney General be removed.”

The Constitution also provides that the president “shall take care that the laws are faithfully executed”—the so-called take care clause. Faithful execution of the deportation law, as Obama’s critics see it, should continue to require, as a rule, the removal of every illegal alien. But the president instead is implementing a policy prioritizing the removal of certain categories of aliens over others. The policy provides “deferred action”—a temporary reprieve from deportation—for undocumented parents of children who are citizens or lawful permanent residents. Up to five million illegal aliens are in this group.

Obama has justified his policy in law enforcement terms as an effort to make better use of the limited resources available to the Department of Homeland Security for enforcing the immigration laws; in humanitarian terms as an effort to help families of aliens stay intact; and in political terms as something he had to do because Congress failed to enact his approach to immigration reform. But for Goodlatte and others in Congress, and for a large number of state attorneys general, Obama’s action constitutes nothing less than a usurpation of congressional power.

Of course, the president’s lawyers see it differently. Obama sought advice from the Justice Department’s Office of Legal Counsel, the elite unit of lawyers who provide nonpartisan (but executive-branch sympathetic) counsel to the president and the agencies. And in its 33-page memorandum, OLC says the president’s action does not raise a constitutional issue and is justified as a proper exercise of “prosecutorial discretion.”

That concept, says OLC, is “rooted in the President’s constitutional duty to take care that the Laws be faithfully executed.” Prosecutorial discretion is most commonly used in the context of criminal law enforcement, in decisions to charge (or not) particular individuals with a crime. The administration is using it in the immigration context to designate for deferred action a large class of undocumented aliens. Thus, individuals who meet the criteria for inclusion in the class, including having the necessary family relationship, are presumed not to be removable, with the threat of deportation lifted for at least three years, during which time these aliens may receive certain benefits, among them work permits.

OLC concedes that “a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.” Indeed, such a policy might even amount to a rewriting of the immigration laws or an abdication of the administration’s “statutory responsibilities with respect to non-priority aliens.”

But, OLC says, the president’s policy doesn’t prohibit case-by-case discretion; indeed, there are no “removable aliens whose removal may not be pursued under any circumstance.” Thus, discretion not to grant deferred action to an undocumented alien otherwise qualified for the temporary reprieve but who committed a serious crime—such discretion is not “entirely” eliminated.

What, though, would it mean for discretion to be “entirely” eliminated? In 2012 Obama established by executive action DACA, the Deferred Action for Childhood Arrivals program. Under DACA, the government has exercised prosecutorial discretion by deferring action against individuals who immigrated to the United States as children and are currently in the country illegally—a class of between 876,000 and 1.7 million. The percentage of those granted a temporary reprieve has ranged between 99.5 and 99.8.

The new policy is modeled after DACA, and Obama’s critics don’t think the percentage of grants will be much different. They see the administration’s approach to enforcement as mere “rubber-stamping,” in which discretion is effectively eliminated. Says Goodlatte, “You can’t take prosecutorial discretion and apply it to five million people without having the exception swallow the rule.”

As for the presence of states in the litigation, that will focus attention on federalism. Texas attorney general Greg Abbott said that the states will wind up having to face “the real consequences” of the new policy, as the millions granted deferred action and allowed to stay in the United States must be schooled and given health care and other benefits. And the states are obligated to pay those bills.

Scott Pruitt, the Oklahoma attorney general, finds of potential relevance the supremacy clause, which establishes the Constitution, federal statutes, and treaties as “the supreme law of the land,” requiring state judges to follow federal law in cases when it conflicts with state law. Pruitt said that the clause “contemplates action by Congress” as the action that is supreme and thus may preempt state law. The clause does not contemplate as supreme an executive action of the kind Obama has engaged in, he adds. The reason is that action by Congress is made in accordance with a constitutional process that ensures the representation of the people. That is not the case with the action by the president. Says Pruitt: “There should be no preemption [of state law] without representation.” The Supreme Court has held, however, that “federal regulations have no less preemptive effect than federal statutes.”

The states in the Texas coalition are contending that the deferred action policy violates the take care clause and are asking the courts to stop it. Congress is likely to argue that the policy violates the structure of separated powers in which the legislative powers are assigned to the bicameral legislature.

Those are constitutional arguments hoping for a judicial remedy. They may or may not succeed. And if they don’t, the reason is likely to have less to do with the merits of the arguments than with the reluctance of judges to decide questions they believe the Constitution has left for the political process to resolve, with the elective branches using the tools available to them, such as, in the case of Congress, the power of the purse.

Soon enough we’ll start to see how the courts regard the legal challenge to Obama’s executive action—and also how the candidates for president see it. After all, the litigation is likely to persist through 2015 and into the election year, and the cases filed and about to be filed raise questions worthy of debate by those aspiring to the presidency—questions of congressional and presidential power, of the contours of American constitutionalism.

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