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Immigration Ruling Highlights Broader Debate on Exec. Orders, Congressional Checks

A recent Court of Appeals ruling has set the stage for a Supreme Court case and has ignited the debate of executive action, the separation of powers and the Constitution.

Some note the case illustrates the challenges of issuing executive orders and highlights the results of a contentious executive-legislative relationship. Last week the Fifth Circuit Court of Appeals upheld on injunction of President Barack Obama’s Executive Orders regarding legal respite for undocumented immigrants in Texas vs. US.

The Administration is planning to seek Supreme Court review. Legal experts from around the county have weighed in on the impact the case will have on broader immigration policy and the future of undocumented immigrants in America. Stephen Berman, managing attorney at Immigration Attorneys, LLP, said he believes the president’s orders which inhibited the deportation of undocumented immigrants and allowed them access to legal work, are "troubling" but in line with the Constitution.

"There is a serious separation of powers issue which has been brewing for the last 100 years," he said, noting the case is "extremely important regarding how this country is governed."

"I believe that this executive order is not at all unprecedented and is not that different than [President Ronald] Reagan’s similar order," Berman says. "The much bigger issue is whether our country can be ruled by executive order, and what to do when Congress really and truly does not trust the president, but yet are not willing to use their normal constitutional check on his authority by rejecting his budgets." He adds that it is "very problematic and we need to rethink a whole lot about how to stay a free nation as this works itself out.”

Melissa Crow, Legal Director American Immigration Council says if implemented, the President’s deferred action initiatives could provide as many as 5 million immigrants with temporary relief from deportation. “The President’s deferred action initiatives are of critical importance for our country as a nation of immigrants,” she says. “Similar prosecutorial discretion initiatives have been implemented by every President since Eisenhower. Both the lower court and the Fifth Circuit found that the plaintiff states were likely to succeed on the merits of their claim that the Administration should have pursued notice-and-comment rulemaking before promulgating these initiatives."

However, she believes this conclusion is unfounded. Both the district court and the Fifth Circuit found Texas has standing to bring this lawsuit because expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) will create a new class of individuals eligible for driver’s licenses, which will impose additional costs on the state.

The court did not address the offsetting economic benefits that states would realize from these programs, including higher wages, increased tax revenue, and new jobs, she says. She also noted neither the district court nor the Fifth Circuit addressed the constitutionality of the initiatives.

Michael Wildes, a managing partner at Wildes & Weinberg P.C., says opponents of the president’s executive orders are arguing based on unsubstantiated fears. He says considering Congress’ lack of movement on the immigration issue, he views Obama’s actions as a step toward “meaningful changes” for millions of undocumented workers. “The opposition’s argument is based in fear and unfounded representations that providing work authorization to the undocumented would steal jobs from American workers, but the fact of the matter is that many of these people are already working but are forced to find jobs with terrible working conditions and illegal low wages due to their undocumented status,” Wildes says.

He says the case is part of “a fundamental fight over whether we attack this problem through inclusionary tactics, such as providing some path to legal status for the millions of undocumented in this country, or we take the exclusionary stance by ramping up enforcement and sending them all home.”

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