States, White House do battle over immigration action

Twenty-five states and the White House are in court battling over the president’s executive action on immigration. On Christmas Eve, the Department of Justice filed its legal response to a lawsuit that challenges President Barack Obama’s authority to defer enforcing deportation laws for millions of people in the United States illegally.

The states’ 30-page petition accuses the president of skirting the Constitution by rewriting the law and not following the proper rule-making steps. Law enforcement, healthcare, and education for immigrants sheltered by the action will cost states a substantial amount, so they seek an injunction to block the new immigration policy from taking effect.

The president’s policy applies to people who fit in one of the following categories: they are younger 30 and came to the United States before their 16th birthdays; they have been in this country for at least five years; they are enrolled in or have graduated from high school; or they have served in the U.S. armed forces. Millions will receive work permits and government benefits—what amounts to legal status in practical terms, if not explicit ones.

Obama framed his immigration position in terms of tradition, with an emotional appeal. But West Virginia Attorney General Patrick Morrisey says it’s about the rule of law and the Constitution: “It’s about ensuring that there’s proper restraints on presidential power and that the separation of powers within the Constitution is respected.”

The president claims Congress refused to pass an immigration reform bill, so he decided to act alone. And he’s not the first one to do so.

“There are actions I have the legal authority to take as president—the same kinds of actions taken by Democratic and Republican presidents before me—that will help make our immigration system more fair and more just,” Obama said.

But that’s not true, according to Jay Sekulow of the American Center for Law and Justice, who filed a friend-of-the-court brief in the matter. He countered the “my predecessors did it” argument by saying, “Those were constitutionally suspect as well, and constitutional violations don’t get better with age.” Sekulow added that none of the previous executive orders on immigration had the scope and breadth of Obama’s.

“Just because you can’t get things done in Congress doesn’t mean that you can ignore them,” Morrisey said. “You still have to follow the law. And that’s what our lawsuits are all about.”

But Muzaffar Chishti of the nonpartisan Migration Policy Institute said the immigration action is simply a matter of pragmatism. It’s clear to everyone the government does not have the resources to deport all of the estimated 11.5 million people who are here illegally, he said. The question is, who should the government target for deportation? The people affected by Obama’s executive action have never been high on the priority list. But that argument, critics say, ignores the deterrent effect of laws and encourages more illegal border crossings.

The administration will claim the states have no standing to sue. After all, in 2012 the Supreme Court ruled immigration and borders are federal concerns. But the tradeoff is that Congress, via elected representatives, gets to shape those laws, not the president.

The administration also argues the states have shown no damages as a result of the new policy. But there are plenty, said Scott Pruitt, the attorney general of Oklahoma, part of the 25-state coalition.

“Up until the president’s executive action, these individuals were here unlawfully. And so if they presented for state welfare benefits, if they presented for state Medicaid, or if they presented for licensure of the state in some form or fashion, none of those things the state government was obligated to perform or to provide. And now we are,” Pruitt said.

Pruitt wasn’t all grim about the president’s action. Parts of it are good and necessary, he said, such as providing more visas for people with IT skills and seeking immigrants who want opportunity, not entitlement. People with criminal histories against person or property still will be deported. But, “rule of law matters,” Pruitt said. “The process matters. Our checks and balances matter. And there are parts of his proposal that may not be a good idea, and that’s where the states, through their representatives, should have a say.”

The Department of Justice says the states are making a political argument against the policy, not a legal one. All of the state officials who have signed onto the states’ lawsuit are Republican, either attorneys general or governors.

Other challenges to the immigration action have already come. In December, a federal district judge in Pittsburgh ruled the president’s action wasunconstitutional. In a slip during a November speech, Obama, trying to quiet a heckler, said “What you are not paying attention to is, I just took an action to change the law.” The courts have chastised this president numerous times for going around Congress. A Supreme Court ruling last term said the president abused his power to appoint judges to the bench. In the Hobby Lobby ruling, the high court said the administration’s Health and Human Services agency couldn’t force religious businesses to pay for abortifacients in healthcare coverage.

The argument comes down to rule of law versus pragmatism, and how to navigate what some see as a grey area of the law.

“We never know if something is Constitutional or no until a majority of the justices of the Supreme Court say it is constitutional or not,” Chishti said.The states’ litigation asks for an injunction, requests typically handled quickly by the courts. After the U.S. District Court in Texas rules, the losing party will undoubtedly appeal to the Supreme Court.