Wednesday, July 30, 2014

Politico: Obama Has Dictatorial Powers Regarding Immigration

Re-posted by Nicholas Stix

Thanks to reader-researcher RC for this article.

No, Politico’s Josh Gerstein didn’t literally say that, but’s the upshot of what he did say. And yes, he did quote critics of the John Doe calling himself “Barack Obama,” but he did so at the end of his article, after most readers will have quit reading, thus giving him plausible deniability—but not with me.

Barack Obama's immigration moves could be unstoppable
By Josh Gerstein | 7/29/14 5:07 AM EDT

Even if President Barack Obama tests the bounds of his presidential power with the big, unilateral moves he’s promising on immigration, there may be no way to stop him.

Lawyers are debating the legality of a series of immigration-related executive actions the White House is reportedly considering, but there’s broad agreement suing the president isn’t likely to work.

“The court route: I don’t see it,” said Jan Ting, a top immigration official under President George H.W. Bush who opposes Obama’s expected moves.

Legal experts see any challenge to the expected immigration policy changes headed for the same key roadblock facing House Speaker John Boehner’s planned suit over Obamacare implementation delays: finding a way to show the injury needed to press a case in the federal courts.

“There isn’t really anyone who would be in a position to complain,” said Hiroshi Motomura, a University of California at Los Angeles law professor who favors several of the options Obama is considering.

The lack of a clear path to challenge the president’s expected moves to give more illegal immigrants work permits and relief from deportation seems certain to fuel howls from Obama critics that he’s as much an imperial president as his predecessor — who was often criticized by Obama and other Democrats for overflexing his presidential muscle.

Responding to inaction in the House on immigration reform, Obama has signaled to immigrants’ rights advocates that he plans to take significant new executive actions next month to overhaul the immigration system. They could range from reordering the priority list of deportation cases to dramatically expanding the “deferred action” program he initiated in 2012, which allows immigrants who entered the
U.S. illegally as children to apply for a two-year deportation reprieve.

That could mean allowing millions of family members of so-called DREAM-ers to get work permits, or perhaps allowing giving work permits to even broader groups, such as undocumented immigrant parents of U.S. citizens or virtually everyone who’s not considered a high priority to deport.

“This notion of extending DACA [Deferred Action for Childhood Arrivals] to parents, who were the ones who consciously violated the law, strikes me as ridiculous,” said Ting, now a law professor at Temple University. Obama “has defaulted on his constitutional obligation to faithfully execute the laws.”

However, other experts say most lawyers in the field believe Obama has few restrictions on his ability to decide how and when the U.S. deports immigrants.

“There is, I think, a general consensus that his authority to take executive action is fairly wide as long as it is based on executive branch authority to use prosecutorial discretion to decide how people are treated who are subject to deportation,” said Doris Meissner, Immigration and Naturalization Service Commissioner under President Bill Clinton.

“He’s got a continuum of options from a fairly narrow reworking of deportation priorities all the way to a new program of some kind that would allow more numbers of people to apply for work permits of some kind,” she added.

What Obama has done so far on immigration and what he’s likely to do in the future can be justified on the theory of prosecutorial discretion, the long-standing executive branch power to decide in which cases the law should be enforced, Motomura said.

[Bull. There is no such discretion regarding the nation’s immigration laws.]

“We have a system that runs on discretion. There are 11 million people in the country who in theory are not supposed to be here. Congress has funded the capability to deport maybe half a million people a year,” the professor said.

Motomura, author of “Immigration: Outside the Law,” said he sees no legal bar to expanding the deferred action program. “He could expand it to people who are closely related to those people who have been standing in line to be approved,” the professor said.

But Motomura said that doesn’t mean Obama has a completely open path — nor are there indications the president will attempt to break those boundaries.

“I think there are real constraints on him,” Motomura said. “He cannot give people a permanent immigration status. He cannot give people green cards. He cannot bypass the process … He cannot give people a path to citizenship.”

Some Republicans feel the president doesn’t have as much leeway as immigrant rights groups suggest.

“If the President may constitutionally permit fifteen per cent of the Nation’s illegal immigrant population to remain in the United States without fear of removal, why may he not do the same for fifty per cent of that population, or for all of it?” George W. Bush Justice Department officials John Yoo and Robert Delahunty wrote after Obama unveiled DACA in 2012. “The failure of an agency to perform its ordinary enforcement duties may be so unreasonable that it may be considered unconstitutional, notwithstanding limitations on its resources. The Constitution confers no express or implied power or authority not to enforce the laws.”

Boehner has complained publicly that Obama’s unilateral moves on immigration are part of a pattern of the president disregarding his legal duties. “This is about him faithfully executing the laws of our country,” Boehner said last month as he announced House plans to file a lawsuit against Obama over alleged executive power overreaches.

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