Legal experts: How Congress can fight Obama’s immigration order

If Republicans are willing to risk the political fallout, they could pass laws to tie the president’s hands and roll back his executive action

House Speaker John Boehner at a news conference during the partial government shutdown last year. (J. Scott Applewhite/AP)
House Speaker John Boehner at a news conference during the partial government shutdown last year. (J. Scott Applewhite/AP)

President Barack Obama announced Thursday night that he will protect millions of undocumented immigrants who have U.S. citizen children from deportation, prompting Republican lawmakers to scramble to find a way to fight back against the move, which they call an overreach of power.

Nearly 60 House Republicans signed a letter to the president threatening to defund his efforts to executively offer relief to the immigrants. But the agency that would be in charge of the effort is self-funded, the House Appropriations Committee announced Thursday, making cutting off funding nearly impossible. A full government shutdown, meanwhile, would most likely blow up in Republicans’ faces, sparking charges of partisan bickering and raising economic anxieties right before the holidays.

Others, such as Texas Gov. Rick Perry, have threatened to contest Obama’s move in the courts. But legal experts say any lawsuits against Obama will face an uphill battle in a court system that’s repeatedly backed presidents’ broad latitude in setting law enforcement priorities.

Congress does have one option that could work, though — exercising a muscle that’s withered with disuse by passing an actual law.

Republican opponents of Obama’s executive order on deportations could tie the president’s hands using new legislation, if they are willing to risk the potentially damaging political consequences of making an explicit move to kick large numbers of Latin American and Mexican immigrants out of the country.

In 1996, Congress allowed the executive branch the discretion to give out as many temporary work authorization permits to immigrants as it deemed necessary. Now, some Republicans are objecting to the notion that millions of parents of U.S. citizen children could qualify for the permits under Obama’s new plan.

But the legislative body never set a limit on the permits in the first place, which is what gave the president the freedom to do this, according to legal scholars.

“Congress has only itself to blame if they think the president is behaving wrongly here,” said Yale Law professor Michael Wishnie. It could set a limit on the permits for the first time.

In this Oct. 24, 2014 file photo, Texas Gov. Rick Perry speaks during a conservative rally in Smithfield, N.C. On Tuesday, Nov. 18, 2014. (AP Photo/Gerry Broome, File)
In this Oct. 24, 2014 file photo, Texas Gov. Rick Perry speaks during a conservative rally in Smithfield, N.C. On Tuesday, Nov. 18, 2014. (AP Photo/Gerry Broome, File)

In addition to explicitly setting limits on work authorization permits, Congress could also attempt to pass laws setting explicit enforcement goals that would counter the president’s plan. For example, Congress could direct the Department of Homeland Security to increase the deportation of unauthorized immigrants who have lived in the country for longer than five years or of immigrants with U.S. citizen children, directly contradicting the president’s enforcement priorities. It could also set standards for how many immigrants should be arrested each year to keep the numbers at their current highs.

But Congress tends to give latitude to the executive branch on prosecutions for a reason. “If every trivial violation of every law that’s on the books … resulted in a criminal prosecution or even a civil penalty, life would be intolerable,” said Jack Chin, a professor at the University of California Davis School of Law. “We would be in a police state.”

Passing a law to increase the deportation of immigrants with U.S. citizen children likely also would be seen as extreme, and thus a politically self-defeating approach to countering Obama’s plan.

“We are currently discussing a range of options with members of the House,” said Michael Steel, House Speaker John Boehner’s spokesman.

Another legislative way forward for Republicans would be to attach riders to legislation stating that no money should be allowed to be directed toward processing work authorization permits for this group. But the president would most likely block any such maneuver with his veto power — and could block any other Congressional attempts to sidestep his plan in the same way.

For now, Republicans are stressing that they believe the president’s immigration actions are illegal. The president emphasized that the move was part of his “lawful authority as president” in a short video posted on Facebook announcing it Wednesday. He said he would continue to work with Congress to get a comprehensive immigration reform bill passed.

Many legal experts have backed up the White House’s claim that his order is well within the president’s power.

“The president clearly and unquestionably has the authority to do this,” said Erwin Chemerinsky, dean of the UC Irvine School of Law. “Presidents always get to decide what laws to enforce or not enforce.”

Chemerinsky cited the Supreme Court case United States v. Nixon, which held that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

U.S. President Barack Obama arrives to host a ceremony honoring the National Medal of Technology and Innovation awardees at the White House in Washington November 20, 2014. Obama briefly touched upon his planned executive action on immigration which will be announced tonight. REUTERS/Kevin Lamarque  (UNITED STATES - Tags: POLITICS SCIENCE TECHNOLOGY SOCIETY IMMIGRATION)

The president can direct law enforcement to decline to prosecute an entire class of people — in this case, parents of U.S. citizens — without even approaching a legal gray area, he said. Previous presidents, including Ronald Reagan and George H.W. Bush, made similar decisions about who not to deport. In 1990, Bush expanded Reagan’s 1986 amnesty law to prevent the deportation of more than a million more people without the approval of Congress, though Congress later ratified the move.

But conservatives argue that Obama’s actions will be different. They point out that Congress has explicitly rejected comprehensive immigration reform under Obama, so his executive action defies their will in a way that Bush’s did not. Perry said Wednesday at a panel discussion with other Republican governors that he was considering suing the administration over the move on behalf of his state.

And the president himself has said in the past that he thinks unilaterally preventing the deportation of large groups of undocumented immigrants would be legally questionable. “The problem is that I’m the president of the United States, I’m not the emperor of the United States,” Obama said when asked whether he would prevent immigrant families from being torn apart by deportation last year. “My job is to execute laws that have been passed.”

Lawsuits can be tricky, however, because plaintiffs must prove they are suffering a direct injury from Obama’s move or their suit will be thrown out. Congress has not had luck in suing the president in the past over his immigration decisions.

“Members of Congress don’t have standing to sue under this circumstance,” Chemerinsky said.

A lawsuit challenging the president’s last immigration executive action — when he lifted the deportation threat for half a million young people — that was brought by immigration enforcement agents was thrown out on standing issues. The suit has been appealed and will be heard by the 5th Circuit Court of Appeals.