What constitutional options remain for the GOP to block Obama’s executive order?
On Thursday night, President Barack Obama will explain his legal reasoning behind an executive order on immigration. So what options do Republican leaders have to block an action that could allow up to 5 million currently unauthorized immigrants to stay in the United States?
The immigration debate is complex and President Obama said in his 2014 State of the Union address he would use his executive order powers to push for items like immigration policy change if Congress didn’t act.
“America does not stand still, and neither will I,” Obama said back in January. “So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.”
Republican lawmakers, especially in the House, don’t agree with the President’s tactics on immigration, even though the Senate passed an immigration law earlier this year. They prefer a slower approach with an upfront focus on border security.
President Obama is expected to announce he will issue an executive order allowing illegal immigrant parents with children born in the United States to stay here indefinitely. Others who have come here illegally and have remained in the United States for a long time will also be allowed to stay indefinitely. There are also other conditions on who qualifies to stay.
The action could allow 5 million of an estimated 11 million to 12 million unauthorized immigrants to get work permits, but they wouldn’t get health care benefits.
The legal options available to the Republican leadership, which strongly opposes Obama’s use of executive orders, have been widely debated for the past week. Here is a rundown of the most-discussed options.
1. Turn to the Supreme Court. Senator Rand Paul suggested this recently, telling Fox News this was the only realistic option – short of having a new President in the White House. “I think with regard to immigration reform, [the president] is doing something that Congress has not instructed him to do and in fact has instructed him otherwise, so I think the Supreme Court would strike it down,” said. “That takes a while, but that may be the only recourse short of a new president.” The reality is the Court in the past did rebuke President Harry Truman in the 1952 Youngstown case. The Court also ruled against President Bill Clinton in 1995 in a government labor dispute involving an executive order. But these were rare victories and a Supreme Court action may not happen quickly, if at all.
2. The House can file a lawsuit against President Obama. Actually, the House leadership has been trying to sue Obama since the summer, when an outraged John Boehner said a lawsuit was imminent over President Obama’s delay in implementing parts of the Affordable Care Act. The House has just hired its third new attorney in the lawsuit effort, after the first two resigned. That suit hasn’t been filed, but the House leaders could add the immigration order to it.
3. The states can sue President Obama. Current Texas Governor Rick Perry has already threatened to do this. And incoming Texas Governor Greg Abbott has filed 30 lawsuits against the Obama administration as the state’s attorney general, and he is on the record as stating Texas has suffered harm from its border crisis due to alleged inaction by the federal government. At a GOP governor’s meeting on Wednesday, Louisiana’s Bobby Jindal seemed to lean toward the House lawsuit option, but not strongly. “We have separation of powers in this country for a reason,” Jindal said. “This president, if he wants to change the law, he should go to Congress, get a bill passed, work with the House and the Senate.
4. The House can defund parts of the government that implement actions mandated by the executive order on immigration. This has been a widely discussed option that ties into the House’s constitutional “power of the purse.” And with the GOP controlling the House and Senate as of January, Republican leaders would have several options that could shut down certain agencies without shutting down the entire federal government. But Congress also needs to fund the federal government’s short-term operations by December 12, and a government shutdown would be possible if defunding efforts are included in any funding bill that would need approval from a Senate controlled by the Democrats until January.
5. Congress can try to repeal an executive order. Technically, the Senate and House could agree on a bill that would nullify an executive order. But in the end, the President could veto the bill, forcing a two-thirds vote by the House and Senate to override the veto. Here is what the Congressional Research Service says about that option: “To effectuate a repeal, Congress need only enact legislation directing that provisions of the executive order ‘shall not have legal effect.’” The President’s constitutional veto power looms over this option, and the CRS did find two recent cases of an executive order that was nullified. But it also cites research that found that only 4 percent of executive orders were successfully changed in some way.
6. Impeachment. This is one option that seems to be off the table, even though it has vocal supporters within the Republican Party. The Constitution requires a two-thirds supermajority vote in the Senate once impeachment articles are approved in the House. The House’s more-moderate leaders are also on record against impeachment – at the moment.
After Thursday night, two other factors come into play. No one outside President Obama’s inner circle has seen the legal reasoning document underpinning the executive order. The President is expected to cite precedents within the Constitution or prior actions to justify his moves – and even similar actions from the Reagan administration.
Also, the immigration debate has strong political overtones that will affect the Republican’s strategy with a 2016 presidential and Congressional election on the horizon. Key electoral states like Florida and New Jersey have significant unauthorized immigrant populations, and minority voters will have a bigger share of the voting population nationally in two years.
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