What Are the Legal Grounds to Challenge Obama’s Coming Immigration Order?

Legal experts say constitutional challenges to President Barack Obama's coming executive actions on illegal immigration will be difficult to adjudicate.

President Barack Obama waves from Air Force One as he arrives from Brisbane, Australia, Sunday, Nov. 16, 2014, at Andrews Air Force Base, Md. (AP/Pablo Martinez Monsivais)

The Constitution requires the president to execute the nation's laws, which is the primary reason critics argue that bestowing legal status to people in the country illegally would be unconstitutional. Some House Republicans are calling for a lawsuit to sue Obama if he takes such action.

But it's unlikely that Congress or local governments would have standing to mount a constitutional challenge to the executive action, said Nicholas Quinn Rosenkranz, a law professor at Georgetown University.

“Congress likely would not have standing to litigate against the executive action,” Rosenkranz told TheBlaze. “However, an individual who could prove that he was injured in fact by the executive action — because, for example, he lost out on a job opportunity — could potentially have standing to sue.”

Obama on Thursday night is expected to detail his plans for halting deportations of certain illegal immigrants, including granting legal status to the parents of U.S. citizens and legal residents.

“Pre-emptively announcing that you will not enforce the law against a population of millions — this is several orders of magnitude beyond traditional case-by-case prosecutorial discretion,” Rosenkranz said. “In this case, the president is reportedly considering affirmative actions — issuing of papers and so forth — that would purport to confer some legal status. This is a giant step beyond traditional prosecutorial discretion.”

But Richard Kelsey, assistant dean of the George Mason University School of Law, said that either Congress or a member of Congress would only have standing.

“If a challenge is based on separation of powers, it has to come from a member of Congress, who could argue the president is doing my job,” Kelsey said. “For governors or individuals it would be a much higher climb.”

Kelsey said Obama could have strong footing based on the 1984 Chevron v. Natural Resources Defense Council, in which the Supreme Court gave wide latitude to executive branch agencies to interpret the laws and prioritize enforcement.

“The Chevron doctrine empowers the administrative state to enforce almost anything as it wants,” Kelsey said. “It could, in theory, give the president the legal coverage to provide de facto legal status without examination to a whole population of people for a period of time.”

Obama in the past repeatedly insisted he did not have the authority to act without Congress. But in June, he asked Attorney General Eric Holder and Homeland Security Secretary Jeh Johnson to review the options legally available to him.

“Any action the president takes will be based on a thorough legal analysis of the president's executive authorities," a White House official told TheBlaze.

A Congressional Research Service legal analysis by legislative attorneys Kate M. Manuel and Michael John Garvis said it could be difficult for a court to determine whether not enforcing certain laws would constitute abdications of duty by the executive brach.

What the president can do largely depends on how ambiguous or how specific the language of the Immigration and Nationality Act is in certain areas. Generally, the Congressional Research Service analysis was inconclusive, but cited the 1985 case of Heckler v. Cheney that would prohibit “consciously and expressly adopt[ing] a general policy [of not enforcing the law]."

“The Supreme Court has found that some deference may be owed to agency regulations [or adjudications] which construe statutes that are ‘silent or ambiguous’ as to specific issues,” the analysis said. “The executive branch may also be afforded deference in less formal interpretations of statutes and in interpreting its own regulations. However, agency interpretations must conform to the ‘unambiguously expressed intent of Congress.’”

Obama's 2012 unilateral action, Deferred Action of Childhood Arrivals, was an action taken by the Department of Homeland Security justified by prosecutorial discretion. 

Prosecutorial discretion is typically used in two instances: for budgetary reasons or when a surprise circumstance arises that Congress could not have foreseen when passing a law, said John McGinnis, a law professor at Northwestern University.

“This is not budgetary and this is not unexpected, no unusual or unexpected circumstances,” McGinnis said. “The reason he is giving is that Congress hasn’t changed the law. That seems problematic.”

White House press secretary Josh Earnest has recently referenced executive actions that Presidents Ronald Reagan and George H.W. Bush each took on immigration. Both actions were extensions of the 1986 amnesty law legalizing illegal immigrants in the country before 1982, which passed Congress and was signed by Reagan.

In 1987, Reagan's Immigration and Naturalization Service determined that minor children of parents granted amnesty by the law would get protection from deportation. In 1989, Bush took unilateral action on a “family fairness” policy that extended this to spouses that didn’t qualify under the 1986 amnesty law. Congress passed the policy into law at the end of that year.

However, in these cases, and in the case people from Nicaragua coming into the United States in the middle of a war during the 1980s, the executive actions were taken on matters that Congress had not anticipated, McGinnis said.