U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

Texas, 16 Other States Sue Pres. Obama Over Immigration Orders

Last week, President Obama announced that he would be taking the initiative to craft immigration policy in the absence of congressional action. All of his actions come under the umbrella of enforcement. The president has no power to rewrite immigration law, but as the head of the executive branch, he can prioritize enforcement.

Republicans decried the move as outside his constitutional powers and threatened to sue. Last week, the Texas Attorney General, joined by 16 other states, sued the United States in the southern district of Texas. So what's their gripe about?

I Didn't Get a 'Harumph' Out of That Guy

It's about what they claim is the "unilateral suspension of the Nation's immigration laws" through the president's plan, which will "legalize the presence of approximately 40% of the known undocumented-immigrant population, and afford[] them legal rights and benefits."

The harm, they claim, is that Obama's immigration plans -- dating back to his deferred action plan in lieu of the DREAM Act -- resulted in a mass influx of immigrant children and families into the United States. "The crisis has imposed enormous law enforcement costs on the Plaintiff States," the complaint says. The mass influx is allegedly the result of immigrants thinking that if they enter the country illegally, they won't be deported.

Constitutional Violation(s)

That's all juicy background, though. The suit is, of course, about the most recent immigration plan, which Obama announced on November 20. The complaint claims that the new policy violates the Take Care Clause of the Constitution, which says that the president "shall take Care that the Laws be faithfully executed."

The suit relies heavily on statements Obama made in the press as admissions that his intent is to impermissibly changing the law. Of course, these statements don't amount to admissions in an evidentiary sense and are largely meaningless. Just because Obama said on previous occasions that he wouldn't take executive action doesn't mean that his current actions somehow violate a long-standing, actionable "no takebacks" rule.

Count Two of the complaint alleges a violation of the Administrative Procedure Act, which requires changes to agency rules to go through a notice and comment period. Count Three claims that the new rules are "arbitrary and capricious."

Will It Work?

Baloney? Steven Schwinn of Constitutional Law Prof Blog thinks it "reads more like a political ad (in numbered paragraphs) than a serious legal complaint." Obama's actions, wrote Erwin Chemerinsky and Sam Kleiner in The New Republic, fall squarely within the executive's prosecutorial discretion power. And, they say, immigration prosecution is even more in the president's power "because the treatment of foreign citizens is inextricably intertwined with the nation's foreign affairs, an area especially under the president's control."

There's also the issue of standing: The plaintiffs claim that they'll have to spend more money on administration of new benefits under the president's plan -- but the president can't make them do anything. If a state doesn't want to issue ID cards or drivers licenses to undocumented immigrants, it doesn't have to. All of that, therefore, might be too attenuated to qualify as an injury.

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