New York Times
By Julia Preston
December 8, 2014
A group of 20 states that filed a federal lawsuit this week against President Obama’s executive action on immigration could face difficult legal and factual hurdles, legal experts said, because federal courts have been skeptical of similar claims in the past.
Several lawyers said the states could have a hard time convincing the federal courts that they could suffer specific harms as a result of Mr. Obama’s actions. Those harms are the legal foundation for them to bring the suit.
“The injury the states are alleging seems a bit speculative,” said Cristina Rodriguez, a professor of immigration and constitutional law at Yale Law School. “In many ways this is a political document,” she said of the suit, adding, “It feels more rhetorical than legal.”
Others counter that the suit is sound. Jay Sekulow, chief counsel of the American Center for Law and Justice who has argued several cases involving conservative causes before the Supreme Court, said that Mr. Obama had gone far beyond the bounds of executive discretion and that the lawsuit would demonstrate that. “The scope and breadth of what the president has done is so impressive that it changes the dynamic dramatically,” he said.
The complaint was filed on Wednesday in federal court in Brownsville, Tex., by Texas and 16 other states, with Arizona, Florida and Ohio joining on Thursday. The states charged that the president had overstepped his authority and failed in his constitutional duty to faithfully enforce the laws.
In actions Mr. Obama announced on Nov. 20, he offered three-year deportation reprieves and work permits to as many as five million illegal immigrants. The president said he was using well-established discretionary powers to set immigration enforcement priorities.
The lawsuit contends that a smaller program Mr. Obama started in 2012, which gave deportation protections to young immigrants who came here as children, had unleashed a surge of illegal crossings of unaccompanied minors across the nation’s Southwest border last summer, imposing spiraling costs on Texas and other states.
Legal papers filed on Thursday by the attorney general of Texas, Greg Abbott, asked the court to order an emergency halt to the president’s actions, saying the new programs “will set off another humanitarian crisis” at the border. The states argued it would be “virtually impossible to unscramble the egg” once the administration starts taking applications from immigrants for the deportation deferrals.
In a conference call on Friday, the attorneys general from two states named on the plaintiffs’ list distanced themselves to some degree from the lawsuit and sought to turn the pressure on Congress to pass a more permanent immigration overhaul. Greg Zoeller of Indiana, a Republican, and Jim Hood of Mississippi, a Democrat, released a bipartisan letter they signed with 16 other state attorneys general calling on Congress to act.
Mr. Zoeller said he agreed with Gov. Mike Pence, also Republican, “on the very serious constitutional questions that the president’s action raises.” But he advised the governor to seek an outside lawyer to represent Indiana in the immigration lawsuit because it would be “somewhat distracting” for Mr. Zoeller when he was working to convince lawmakers in Washington “to come together and do the hard work of legislation.”
Mr. Hood said Gov. Phil Bryant, a Republican, had joined the lawsuit but that the State of Mississippi had not. Mr. Hood said that after Mr. Bryant joined a similar lawsuit several years ago, he had been dismissed from the case by the judge.
The new lawsuit, Mr. Hood said, “was governor-driven litigation which involves policy and drags us into litigation we might not initiate on our own.”
Walter Dellinger, a constitutional lawyer, noted that the lawsuit did not refer to the main statutes the president had evoked as the legal basis for his actions or offer a rebuttal to a lengthy finding by the Justice Department’s Office of Legal Counsel. The states “make a political argument that is legally beside the point,” said Mr. Dellinger, a lawyer at the O’Melveny & Myers law firm, who has expressed his view that the president’s initiatives are constitutional.
Lawyers representing unaccompanied minors who crossed the border this summer said Texas could find it difficult to prove claims that the minors were attracted by the president’s programs. Jonathan Ryan, executive director of Raices, which means roots in Spanish, an immigration legal services group in San Antonio, said he and his staff had interviewed at least 2,200 youths.
“Almost to a child, no one came over anticipating any kind of benefit nor did they name DACA in particular,” said Mr. Ryan said, referring to the name of Mr. Obama’s program, Deferred Action for Childhood Arrivals, from 2012.
At the National Immigrant Justice Center in Chicago, lawyers interviewed 3,956 migrant children this year. Lisa Koop, associate director of legal services there, said the number of children who had heard of the 2012 program was “in the single digits.”
“It is clear that DACA was not a driving force behind the migration,” Ms. Koop said. “What we heard time and again was that violence in Central America and the need for safe haven was what prompted these children to undertake the journey north.”
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