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Immigration lawsuit: Is it justified?

House Republicans have a long track record of wasting taxpayer dollars. First, they voted to repeal the Obamacare over 50 times knowing that the legislation was dead upon arrival in the Democratic Senate. They then proceeded to shut down the federal government in 2013 because they wanted to defund the Affordable Care Act. Now, they are at it again. Speaker Boehner announced last week that House Republicans will use taxpayer dollars to sue the President for issuing several executive orders to address the immigration crisis.

Last year, President Obama announced a series of executive orders to defer the deportation of millions of illegal immigrants and devote resources to deporting illegal immigrants who are committing crime within the United States. A senior official in the Obama Administration said, “We’re going to be focused on deporting felons, not families.”

This is a sound policy. The United States should differentiate between people who are committing crime and parents who are raising families in the United States. Illegal immigrant felons pose a greater threat to Americans than illegal immigrants who have only committed the crime of illegally immigrating to the America. The Department of Homeland Security has a limited number of resources, and those resources should be spent on deporting people that actually pose a threat to Americans.

These actions are within the scope of the Department of Homeland Security. The executive orders do not grant amnesty for any illegal immigrant in the United States. On the contrary, the orders merely direct the Department of Homeland Security to prioritize deporting criminals before deporting families that have been here for years, if not decades.

In addition to seeking the removal of a good policy, Mr. Boehner’s lawsuit is frivolous and wasteful for two reasons. First, House Republicans are attacking President Obama for something that his Republican and Democratic predecessors did without any substantial objection. Second, House Republicans could have and still can solve President Obama’s alleged executive overreach by passing a law fixing this country’s immigration process.

Secondly, over the past six decades all Presidents, including Republicans, have in some form or another protected certain illegal immigrants from deportation. For example, President Bush Sr. issued an executive order deferring the deportation of spouses and children of people who illegally came to the United States. This affected over 40 percent of the total illegal immigrant population in the United States.

By declaring President Obama’s executive orders unconstitutional, House Republicans are advocating for the status quo that would endanger more Americans. The status quo does not permit the Department of Homeland Security from prioritizing the deportation of violent criminals over non-violent illegal immigrants. Moreover, many current House Republicans were in Congress while George W. Bush was President and remained silent on his executive actions regarding immigration. The big difference between then and now is that a Democrat now occupies the White House. These facts indicate that this Republican lawsuit is a gimmick that will be used to score political points against the President. It is disappointing that House Republicans are using taxpayer dollars to fund their political theater. Ironically, the House Republicans are largely to blame for the current state of affairs.

In 2013, the U.S. Senate passed an overwhelmingly bipartisan, comprehensive immigration bill. Unfortunately, Mr. Boehner did not even allow the House to vote on the bill. Since then, House Republicans have only proposed extreme alternatives that only got several Democratic votes. As these propositions are devoid of practical, bipartisan solutions to a major problem, House Republicans give President Obama no choice. There are more than 11 million illegal immigrants in the United States, and President Obama cannot remain idle on this issue. During President Bush’s term, he too noted that Congressional inaction warrants unilateral executive action.

In sum, Mr. Boehner should stop wasting hard-earned taxpayer dollars to solve his political problems. If he wants to fix immigration, he should propose bipartisan, practical legislation to do so. Until then, he will continue to be part of the problem, not the solution.

Contact Matthew Cohen at mcohen18 ‘at’ stanford.edu.

Back in November, a few weeks after his party lost control of the Senate for the first time in his presidency, President Obama decided to tackle our nation’s problem with illegal immigration by himself. To that end, he announced an executive order that he claimed as necessary fix some of the problems faced by the over 11 million illegal immigrants (the term “illegal” used here purposefully) living in the United States. The order officially does five things to further the idea of immigration reform: It 1) expands the eligibility requirements and time limit of the Deferred Action for Childhood Arrivals (DACA) program, 2) creates a new Deferred Action for Parental Accountability program, 3) eases some requirements for receiving a provisional waiver against deportation, 4) improves how visas are allocated and distributed and 5) makes it easier for immigrants here legally to become naturalized citizens.

The quandary of immigration reform definitely needs to see some sort of resolution under this Congress, if not during this year’s legislative session. And on the whole, the ideas laid out in Obama’s executive order constitute some pretty good policy moves for dealing with the immigration issue. But regardless of how good the ideas in the order might be, a huge problem exists with the entire executive order: It’s unconstitutional. As such, the courts must strike it down.

The Constitution our federal government operates under divides power between the three branches of government, with “all legislative powers” granted to Congress and a few executive powers to the President (who, in turn, delegates some responsibilities to executive agencies, such as the Citizenship and Immigration Services wing of the Department of Homeland Security). In essence, that means that Congress must be the body that makes laws, and the President must be the one who enforces them.

One thing that the President does not have the authority to do, however, is alter existing laws. That power falls into the set of legislative powers granted to Congress, and it belongs to Congress alone. And that fact does not change based on how gridlocked or divided that body may act. Even with the most polarized of Congresses, the President simply cannot issue an executive order as a means of bypassing the legislative branch. Doing so lies entirely outside of the constitutional authority of the Presidency, and doing so flies in the face of the spirit of the separation of powers enshrined in our Constitution.

Speaker of the House John Boehner, many Republicans in Congress and over half of the states in the Union have come to this conclusion, too; as such, they have decided to file lawsuits against President Obama for violating the Constitution and overstepping his bounds. Republicans during the 113th Congress filed a similar suit regarding Obama’s changes to his namesake health care law, the Affordable Care Act, which his administration has routinely altered and amended without Congressional approval. Although that lawsuit has not yet been decided, it seems that Speaker Boehner has higher expectations for this latest suit.

And he should. The Supreme Court has been intriguingly aligned with the majority of the population when it comes to the Affordable Care Act (ACA, or, often, Obamacare), due perhaps to the issues at stake falling into legal grey spaces. Just as the law appears to have mixed reviews around the country (with about 51 percent opposing it, compared to about 40 percent supporting it, according to a RealClearPolitics poll), SCOTUS has come across as narrowly divided and mixed on Obamacare as well, particularly with National Federation of Independent Business v. Sebelius and Hobby Lobby v. Burwell. The Supreme Court will again take up the law in King v. Burwell, but how it rules seems unclear.

The issue of Obama’s executive action on immigration, however, avoids much of the legal and constitutional murk of the various cases about the ACA. The only question that the suit will bring before the Court is that of the extent of presidential power — not about the authorial intent of Congress in a law and not about whether to construe a certain provision of a law as a tax. The case, as Speaker Boehner rightly points out, has nothing to do with illegal immigration in and of itself: It does not hinge on considering what constitutionally-protected rights illegal immigrants have or what sort of legal considerations must be made for them. The courts, in this case, must only consider where the line lies between the authority of the President and the enumerated powers of Congress.

In considering that question, the courts should arrive at no other conclusion than that the executive order violates the Constitution. And once they do, we can get back to working on the issues of illegal immigration through the proper channels.

Contact Johnathan Bowes at jbowes ‘at’ stanford.edu.

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