Republican lawmakers would have to vault high legal hurdles to succeed in getting federal courts to stop President Barack Obama’s sweeping immigration action, constitutional law experts say.
As late as this week, Rep. Robert W. Goodlatte, R-Va., considered a lawsuit against Obama as one of several options to stop what he considers an unconstitutional overstep of executive authority, an aide said. And Rep. Mo Brooks, R-Ala., introduced legislation on Monday (HR 757) that would allow Congress to file a lawsuit. Nine Republican lawmakers co-sponsored the bill as of Wednesday.
“Seeking judicial guidance is not partisan, there is a bigger issue at stake,” Brooks said in announcing the bill. “The overarching issue in this litigation is the delicate balance of power that our nation’s founders embodied in our Constitution. Embodied in that overarching issue is one question: Is America based on tyranny or democracy?”
Obama will address the nation tonight unveiling his immigration order, which is expected to offer protection to millions of illegal immigrants. “Every President for more than half a century, both Democrats and Republicans, has taken executive action on immigration,” the White House said in talking points distributed to Democratic congressional offices Wednesday night. “The President’s actions are temporary. House Republicans need to do their job and pass the bipartisan Senate bill to provide a permanent fix.”
Legal action is on the minds of Republicans, though. Speaker John A. Boehner’s office told reporters the House might add immigration to the lawsuit it authorized in July to challenge Obama’s implementation of the health care overhaul law (PL 111-148, PL 111-152).
States with Republican leaders want to get in to the act as well. Gov. Rick Perry said Wednesday that Texas might sue Obama over the immigration plan, according to news accounts of a panel discussion at the Republican Governors’ Association in Florida. “I would think that there is a very real possibility,” Perry reportedly said.
But it would be “very difficult” for the House—or another challenger—to successfully press a case against Obama’s immigration actions on deportation enforcement, said John Malcolm, director of The Heritage Foundation’s Center for Legal and Judicial Studies.
The main problem is the legal question of standing, or who has been injured by Obama’ s policy change and can bring a lawsuit. That issue has already stopped a legal challenge brought by border agents to Obama’s similar 2012 immigration action, and it looms over any other suit lodged by a member of Congress.
“Coming up with a plaintiff who would be able to show an injury is not an easy thing to do in this context,” Malcolm said. “I think there will be people who want to challenge it. I don’t know who would challenge it, and what their chances of success will be.”
Many legal experts already consider a House lawsuit over health care overhaul implementation a long shot, in part because of the standing issue. The House has other options–like impeachment or a resolution condemning the president–and the federal courts have been unwilling to referee disputes between the other two branches of government.
Immigration is even tougher. The health overhaul law had deadlines and other concrete provisions that Obama did not implement, so the legal argument “was crisper, neater, clearer and doesn’t get into these knotty issues,” Malcolm said.
Other law professors agree. In a paper analyzing Obama’s first immigration action in 2012, Robert J. Delahunty, an associate professor at University of St. Thomas School of Law, and John C. Yoo, a professor at University of California Berkeley School of Law, said that it is unlikely that the Senate, the House of Representatives or individual members of Congress would have standing.
Yet More Hurdles
The legal community appears wary of getting involved as well. The House for four months has been unable to find a lawyer willing to press its lawsuit against Obama on the health care overhaul.
This week, the House contracted with George Washington University law professor Jonathan Turley to act as lead counsel, the third lawyer to work on the case. Minority Leader Nancy Pelosi, in a press statement on Turley’ s contract, said the first two law firms dropped out because they didn’t want to be associated with the politics of the immigration case.
Turley has been outspoken about the dangers of unilateral, unchecked executive action upsetting the balance of powers set up by the Constitution. In a blog post Tuesday explaining his decision to take the case, he acknowledged the legal challenges ahead.
“Clearly, some take the view of a fait accompli in this fundamental change in our constitutional system,” Turley said. “The question presented by this lawsuit is whether we will live in a system of shared and equal powers, as required by our Constitution, or whether we will continue to see the rise of a dominant executive with sweeping unilateral powers. That is a question worthy of review and resolution in our federal courts.”
And then there’s the issue of timing. A lawsuit on Obama’s immigration order could take years to conclude, even after Obama has left office and the administration has implemented the actions for millions of immigrants. That has Republican senators, who will be in the majority in the next Congress starting in January, eschewing legal response for a political one, a Senate Republican aide said.
Even if the House could establish its right to bring Obama to court over his policies, the courts have long given great deference to the executive branch on immigration. That includes the president’s decisions about how to allocate resources among competing priorities.
Obama casts his authority to end deportations for millions of illegal immigrants as “prosecutorial discretion ” on enforcement of the immigration laws, and not a change in the law itself. That falls in line with those previous court rulings. Republicans say he has stretched that discretion so far as to step into congressional powers to make laws.
Justice Department lawyers have seized upon language in a Supreme Court ruling from just two years ago that some legal experts say endorses Obama’s actions when it comes to what the high court called immigration “policy choices that bear on this nation’s international relations.”
In Texas, a federal district court judge tossed out a lawsuit challenging Obama’s immigration action in 2012, finding that federal immigration officers and the state of Mississippi do not have standing to challenge the policy. The case is now pending at the U.S. Court of Appeals for the 5th Circuit, and could eventually be appealed to the Supreme Court.
The officers want to stop a June 2012 administration action that halted deportations of so-called “Dreamers,” illegal immigrants who were brought to the United States as young children.
Another challenger with standing seems unlikely. “The problem is the president is not taking anything away from these people, he is giving stuff to them,” Malcolm said. “You need to find somebody who has the ability to come forward and say, ‘I have suffered an injury because of this.’”
Obama at one time said he did not have the authority to make these immigration moves without Congress. He declared to a crowd in March 2011 that “for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as president.”
White House spokesman Josh Earnest answered a question Tuesday about whether that means Obama has changed his mind.
“Obviously there have been some things that have changed, right?” Earnest said. “We have been in a situation where the president has ordered a broader, in-depth review of the existing law to determine what sort of executive authority does rest with the presidency to determine what kinds of steps he could take on his own.”