August 27, 2012
On June 15, 2012, the Obama administration announced that it will offer “deferred action” status to immigrants who were brought to the U.S. as children and meet other specific requirements.
Some cynical observers commented that the move was a political calculation during a presidential reelection year to shore up Latino support.
Political opponents of the administration went a step further, claiming that the change was unlawful or even unconstitutional.
On August 23, 2012, this claim was advanced in a lawsuit brought by ten federal immigration agents.
The suit is directed against Janet Napolitano, the Secretary of Homeland Security; and John Morton, the Director of Immigration and Customs Enforcement, and the plaintiffs are represented by Kris W. Kobach, the Kansas Secretary of State and an informal advisor to the Romney presidential campaign.
Cynical observers may consider the lawsuit as politically-motivated as the policy change it’s challenging.
Politically-motivated or not, does the suit have a sound legal basis?
I may be getting a bit ahead of myself, though, since the plaintiffs have to first establish that they have standing to bring this challenge.
To have standing, you need three things: injury, causation, and redressability.
In other words, you need an injury caused by the law you are challenging which can be remedied through a favorable court decision.
The complaint explicitly describes how each of the plaintiffs has been “harmed” by Obama’s immigration directive, but these “injuries” all result not from the implementation or enforcement of the directive but from the plaintiffs’ insistence on disobeying it.
Their justification for this defiance is that doing otherwise would cause them to violate their oath to support and defend the U.S. Constitution and other U.S. laws.
Although this basis for standing is questionable, it’s not entirely ludicrous, so the standing question, assuming this theory is accepted by the court, hinges on whether the directive is unlawful and unconstitutional.
As mentioned above, the plaintiffs’ substantive legal claims are centered on the directive’s legality and constitutionality, so we’ll return to standing later.
The first of the plaintiffs’ claims argues that Obama’s directive contradicts federal law, which, according to the lawsuit, requires immigration officers to initiate enforcement proceedings against any and all aliens who are in the country unlawfully.
The complaint also alleges that the directive violates federal law by conferring “deferred action” and “employment authorization” – which the complaint labels as “non-statutory benefits” – without any statutory basis for doing so.
The lawsuit claims that the directive is unconstitutional because, according to the complaint, the directive violates the Article II, Section 3, constitutional obligation of the Executive to ensure that the laws are faithfully executed.
Finally, the complaint alleges that the directive is a legislative act (because it is a “conferral of legal rights and privileges to a large class of persons meeting certain criteria”), and thus is a usurpation of Congress’s constitutional legislative powers.
Unfortunately for the plaintiffs, these legal claims are extraordinarily flimsy.
I could spend the next month detailing why they are so bad, but the bulk of it comes down to something called “prosecutorial discretion” – the ability of law enforcement agencies to decide who to prosecute and when.
Since prosecutorial discretion in the immigration system is a civil matter, it is subject to far fewer restrictions than its criminal equivalent.
Put differently, there is much more discretion in immigration prosecutorial discretion.
Although the complaint repeatedly uses the phrase “prosecutorial discretion,” I do not think that the author knows what it means.
For instance, it asserts that prosecutorial discretion can’t be used to grant “deferred action” status, which is kind of strange, considering that the various immigration enforcement agencies have been openly doing that for 37 years (since the close of the John Lennon deportation case).
There have also been 37 years of case law supporting prosecutorial discretion’s use to grant “deferred action,” which the complaint apparently decided to completely ignore.
Actually, “disregard for case law” pretty well sums up why the complaint’s legal arguments are so deficient.
It’s also pertinent as to why the plaintiffs lack standing: in deciding to disobey the directive, they interpreted the Constitution and U.S. law based on their own beliefs, not the accepted body of case law on the subject.
Thus, the plaintiffs fail the standing test because their injuries were caused not by their faithfulness to the Constitution and the rule of law, but to their own political beliefs.
Interested in the history of the prosecutorial discretion in immigration law? Check out Shoba Sivaprasad Wadhia’s 2010 Connecticut Public Interest Law Journal article, The Role of Prosecutorial Discretion in Immigration Law.