Time
By Alex Rogers
October 30, 2014
Republicans may sue the president, but it's not likely to get far in the courts.
When
President Obama signs an executive order giving temporary deportation
relief and work authorization for millions of undocumented immigrants,
Republicans across the country and on Capitol
Hill will blow up. But there’s not much they can do about it that will
make a difference.
All
Republican options have fatal flaws. Pass a bill to overrule the
executive action? Obama will veto it. Try to override the veto? Not
enough votes in the Senate, even if Republicans control
it. Attach a rider to a government funding bill? End up with another
unpopular government shutdown. Sue the president? Spend lots of taxpayer
money and wait months if not years only to get rejected by a judge.
Still, the last option on the list may be the one Republicans go with.
While
they are keeping their options open before the President shows his
hand—as my colleague Alex Altman reports, it’s still unclear how big he
will go—some have coalesced in favor of a lawsuit
as the bare minimum response to what they think will be a monumental
case in executive overreach.
This
week, House Judiciary Committee Chairman Bob Goodlatte said on Fox that
his recommendation to the Republican congressional leadership is to
“immediately bring suit and seek an injunction
restraining the president,” adding that he and his staff have been in
“considerable communication” with House Speaker John Boehner and
Majority Leader Kevin McCarthy about how to respond to the President’s
actions.
Other
Republicans have advocated for a lawsuit, including Reince Priebus, the
chairman of the Republican National Committee, and Tennessee Republican
Rep. Marsha Blackburn, who would “absolutely”
support litigation to prevent the President’s executive action,
according to spokesman Mike Reynard. Sen. Jeff Sessions (R-Ala.) and
Rep. Mo Brooks (R-Ala.) have supported it in the past. And on Wednesday,
House Homeland Security Committee Chairman Michael
McCaul implied that he would too.
“Our
Constitution requires the President to work with Congress to enact
laws, not ignore Congress or the will of the people,” said McCaul in an
emailed statement. “If the President decides
to once again go it alone and grant amnesty through executive order by
the end of the year, my colleagues and I will have no choice but to do
everything in our power to stop him.”
Over
the summer, the House passed a Blackburn-sponsored bill designed to
freeze the Deferred Action for Childhood Arrivals program—limiting the
number of children granted deferred deportation
and work permits—and bar the President from taking future executive
actions to expand efforts to postpone deportations. But the bill went
nowhere in the Democratic-majority Senate and even under a Republican
Senate it would face an Obama veto.
A
senior House Republican aide familiar with the issue says that
expanding the litigation the House authorized in July over the
Affordable Care Act is “certainly one option,” although no decisions
have been made by the party conference. All that would need to happen
to sue the president over his executive order is for the House to take
another vote. (One reason, perhaps, why the previous suit has not yet
been filed—first pointed out by Washington Monthly—is
that the nonpartisan Congressional Research Service agreed with legal
experts in that the claim had no legal merit.) “We’ll continue to
consult with our members and make a decision if and when the president
acts,” says the aide.
The
Republicans’ response could very well depend on what the President
does, “if and when” that occurs. Expanding DACA to include some family
members of those already eligible could provoke
a different reaction than smaller measures, such as expanding work
permits for those in the agricultural or high-skilled tech sector, which
business groups have pushed. Immigration advocates counter that Obama
might as well go big—affecting the lives of several
million undocumented immigrants instead of around a million—because the
GOP response is going to hold the same shrieking tenor no matter what.
A
lawsuit may have little merit besides making some noise. Last month,
the National Immigration Law Center and the American Immigration Council
distributed a letter sent to the White House
signed by 136 immigration law experts claiming that the President has
the authority to use prosecutorial discretion in preventing large
numbers of undocumented immigrants from being deported. In July, one of
those experts, Stephen Yale-Loehr of Cornell University
Law School, told TIME that the President has “wide discretion when it
comes to immigration,” adding that expanding DACA falls “within the
president’s inherent immigration authority.” In a one-word statement,
distinguished Harvard constitutional law professor
Laurence H. Tribe told TIME that the GOP claim was “unlikely” to have
standing.
Of
course, the legal merit of the lawsuit may not be all that
important—simply announcing one could keep GOP Congressmen content with a
ready response to constituent and reporter questioning
in the immediate term. If and when the conservative backlash dies down,
the party will be fully focused on 2016, when the GOP can undo Obama’s
legacy by repainting the Oval Office red.
For more information, go to: www.beverlyhillsimmigrationlaw.com