Constitution Check: Can the Courts Overturn New Deportation Reprieve?

Lyle Denniston looks at the chances of success for a threatened lawsuit from GOP Rep. Steve King over the Obama administration's latest immigration-policy moves.

The statement at issue:

"Americans should be outraged that President Obama is planning to usurp the constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens....I believe the American people will reject President Obama for his repeated efforts to violate the constitutional separation of powers."

- Iowa Republican Rep. Steve King in a statement June 15 reacting to the Obama Administration just-announced plan to postpone potential deportation of undocumented immigrants who came to the U.S. as children and have remained law-abiding. Congressman King later announced on the Mike Huckabee radio program that he is planning to "bring a lawsuit and seek a court order to stop implementation of this policy."

We checked the Constitution and...

Article III, the part of the Constitution that gives the federal courts their powers, is a major barrier to Rep. King's lawsuit and very likely will lead to its dismissal in court. Article III regularly has been the basis for federal courts' refusal to get into the middle of "separation of powers" conflicts between members of Congress and the White House.

No federal court has authority to decide any lawsuit unless it involves an actual "case or controversy," and that means that the lawsuit must have been filed by someone who will suffer some specific kind of legal injury from government action, and it must have been the type of injury that can be fixed by a court ruling.

It has seldom been the case that a member of Congress, feeling that that member's legislative powers or those of the House or Senate as a whole have been compromised or undermined, has been able to prove actual legal harm. The almost routine reaction of the courts has been that battles won or lost in the legislative arena are not to be mediated by the courts. And, at times, the courts have added in such a case that an individual may not sue if that person has no grievance that is nto shared by virtually everybody in the country -- in Rep. King's case, a claim of presidential usurpation of congressional power.

The congressman's lawsuit will also encounter in court the very specific efforts that the Obama Administration had made to insulate what was being done from court review, by framing the temporary reprieve of deportation of young undocumented immigrants as an exercise of traditional Executive power: that is, how to enforce an existing law day to day.

"Now let's be clear," the President said at the White House: "This is not amnesty, this is not immunity. This not a path to citizenship. It's not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely..." The White House also was careful to point out that the President himself had taken no action; he issued no Executive Order, leaving the enforcement decision to be made by the Homeland Security officials who carry out immigration laws.

Homeland Security Secretary Janet Napolitano echoed those remarks:

The memorandum confers no substantial right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains to the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law.

These arguments are a form of a traditional claim of criminal prosecutors when they decide for or against going ahead with a specific charge: it is their choice to make. (A recent example of this, of course, was the Justice Department's refusal to seek a new trial of former Senator John Edwards on charges of violating campaign finance laws after the first effort largely failed.) Being in the U.S. illegally is itself a crime, and forced deportation can result. DHS two years ago adopted a policy of giving top priority on who gets deported to those who have committed crimes or pose threats to public safety. Under the new policy, no young person in that category is eligible for the reprieve.

Courts customarily do not second-guess the use of "prosecutorial discretion," unless that has been done in a "malicious" way that is somehow discriminatory or punitive in a special way.

What rankled Rep. King, and other members of Congress, was that Congress itself had refused last year to pass the so-called "DREAM Act" that would have achieved the same kind of deportation reprieve, so -- they argued -- the President was defying congressional will in going ahead on his own.

But the failure to pass legislation, or the explicit refusal to enact a bill, does not limit Executive discretion in enforcing laws already on the books. Congress does have the power, of course, to pass a new piece of legislation to undo what DHS did last week. But the votes are not there to do that and, in any event, such a bill would be subject to presidential veto even if it had cleared Congress.

Republicans, of course, were also troubled about the politics of the new policy: they said it was timed to have an impact on this year's election, in a blatant bid by the President for support from Hispanic voters. But that, too, is an argument that courts do not attempt to settle.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.

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