Executive Action and Immigration

President Obama’s executive actions on immigration can be a polarizing issue. The following information is intended to provide you with a baseline to help you make an educated determination of where you stand on the legitimacy of the President’s executive actions on immigration. Here are some excerpts of the discussion on social media – where do you stand?  Weigh in with your position on Twitter, Facebook, Reddit, or the comments field below.

 

On November 20, 2014, President Obama announced several executive actions that include amnesty to undocumented parents of U.S. citizens who have been a permanent resident the United States for at least five years; and expansion of the 2012 Deferred Action for Childhood Arrivals (DACA) to apply to anyone who was brought in the United States before age 16 and lived here continuously since January 1, 2010.[1] It is estimated that four million undocumented immigrants will be affected by this executive order.[2] President Obama’s executive actions have a larger estimated effect on immigration than any of his predecessor’s actions.[3]

[4]

The 1952 Supreme Court Case of Youngstown Sheet & Tube Co. v. Sawyer, established guidelines for a President’s use of executive power.[5] In concurring with Justice Hugo Black’s opinion, Justice Jackson wrote, ” We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.” He asserted that a President’s use of power is most legitimate when the President acts with Congress’ expressed authority; less legitimate when the President acts on something that Congress has not acted upon – legitimacy is dependent upon the necessity to act swiftly based upon particular events; and least legitimate when the President utilizes executive power in defying Congress.

On multiple occasions, President Obama is on record expressing that he does not have the authority to act on his own in regards to immigration.[6]

At a March 28, 2011 town hall meeting, President Obama stated, “With respect to the notion that I can just suspend deportations through executive orders, that’s just not the case, because there are laws on the books that Congress has passed.” “There are enough laws on the books that are very clear in terms of how we enforce our immigration system that for me to, simply through executive order, ignore these constitutional mandates would not conform with my appropriate role as president.”

The President continued this tone on January 30, 2013, when asked if he would consider a moratorium on deportation, President Obama said, “Well, I think it is important to remind everybody that, as I said I think previously, I’m not a king. I am the head of the executive branch of government. I’m required to follow the law.”

On February 14, 2013 President Obama doubled-down on his comments during a Google+ Hangout, “Well look Jackie, this is something I’ve struggled with throughout my presidency. The problem is that I’m the president of the United States. I’m not the emperor of the United States. My job is to execute laws that are passed and Congress, right now, has not changed what I consider to be a broken immigration system and what that means is we have certain obligations to enforce the laws that are in place, even if we think in many cases the results may be tragic.”

Given the President’s own words and the scope of these executive actions, two separate entities moved to sue President Obama. The first lawsuit was filed by Maricopa County, Arizona Sheriff Joe Arpaio.[7] Sheriff Arpaio filed suit in an effort to halt the President’s executive action – asserting that immigration is not “broken”, therefore the President’s action was unnecessary. U.S. District Judge Beryl Howell refused to rule on the merits of the case, holding it is not the role of the courts to make policy. Sheriff Arpaio has since filed a notice of appeal in an effort to raise the case to the U.S. Court of Appeals.

The second lawsuit stemming from the executive action is a joint lawsuit in which 24 states join Texas in suing the United States of America, as well as the Secretary of the Department of Homeland Security, Commissioner of U.S. Customs and Border Patrol, Deputy Chief of U.S. Border Patrol, Acting Director of U.S. Immigration and Customs Enforcement, and Director of U.S. Citizenship and Immigration Services for violating the Take Care Clause, U.S. CONST. art. II,§ 3, cl. 5, and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.[8, 9]   The U.S. Constitution clause states that the President is required to “take care that the laws be faithfully executed.” [10] Texas et al seeks a preliminary injunction which would block the executive actions for the duration or the court battle. The case has yet to be heard in the court.

Legal precedence exists for the use of executive order on immigration. President Obama’s 2012 executive order creating DACA and his 2014 executive actions mark the tenth and eleventh time in 54 years that a President has utilized executive power in terms of immigration.[11] Following the 2012 executive order, a group of 136 law professors wrote to President Obama stating the President’s order was legally sound. [12] The American Immigration Council, joined by American Immigration Lawyers Association, Define American, National Immigrant Justice Center, National Immigration Law Center, New Orleans Workers’ Center for Racial Justice, Service Employees International Union, Southern Poverty Law Center, and United We Dream filed an amicus brief to the court in support of the President’s executive action – asserting the benefits of the actions, and calling for the court to not grant the preliminary injunction.[13]

Unlike Sheriff Arpaio’s lawsuit against the President, Texas v. U.S. does not challenge the President’s actions based on its effect on immigration, but rather challenges that the November 2014 suspension of immigration laws exceeds the constitutional authority of the President.[14] Based upon the circumstances, the case of Texas v. U.S. differs from previous precedence established by previous executive orders and the 2014 lawsuit filed by Sheriff Arpaio.

Precedence established in the Youngstown Sheet & Tube Co. v. Sawyer case may have an impact on the case as well; immigration reform has been discussed in Congress, but a bill has yet to pass both chambers.[15, 16]   As a result, President Obama’s executive action would be of questionable legitimacy according Justice Jackson’s concurrence in the 1952 Supreme Court case.[17] On these grounds the Court may deem that the President’s use of executive order is illegitimate, and as a result, unconstitutional because Congress had been working on immigration reform. Alternatively, the court can assert that the use of executive power was constitutional based on legitimacy, but unconstitutional because it halts the application of law – violating the “Take Care Clause” of the Constitution.

Ultimately, the Court will create precedence in deciding whether President Obama and future Presidents can create or suspend law utilizing executive orders.

Outside Resources

[1] Executive Actions on Immigration. (2014, November 20). USCIS. Retrieved December 30, 2014, from http://www.uscis.gov/immigrationaction

[2] Ehrenfreund, M. (2014, November 20). Your complete guide to Obama’s immigration executive action. Washington Post. Retrieved January 13, 2015, from http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/19/your-complete-guide-to-obamas-immigration-order/

[3] Executive Grants of Temporary Immigration Relief, 1956-Present. (2014, October 1).American Immigration Council. Retrieved December 30, 2014, from http://www.immigrationpolicy.org/sites/default/files/docs/executive_grants_of_temporary_immigration_relief_1956-present_final_4.pdf

[4] DeSilver, D. (2014, November 21). Executive actions on immigration have long history. Pew Research Center. Retrieved January 13, 2015, from http://www.pewresearch.org/fact-tank/2014/11/21/executive-actions-on-immigration-have-long-history/

[5] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

[6] Gorman, S. (2014, December 29). Goodlatte says Obama has flip-flopped on his power to order immigration reform. Politifact. Retrieved December 30, 2014, from http://www.politifact.com/virginia/statements/2014/dec/29/bob-goodlatte/goodlatte-says-obama-has-flip-flopped-his-power-or/

[7] Yost, P. (2014, December 24). Judge dismisses lawsuit against Obama on immigration. PBS. Retrieved December 30, 2014, from http://www.pbs.org/newshour/rundown/judge-dismisses-lawsuit-obama-immigration/

[8] Boucher, D. (2014, December 22). Tennessee joins lawsuit challenging Obama immigration orders. WBIR. Retrieved December 30, 2014, from http://www.wbir.com/story/news/2014/12/22/tennessee-joins-lawsuit-challenging-obama-immigration-orders/20765423/

[9] Texas v. U.S., S.D. Tex. (2014). Retrieved on January 3, 2015, from http://www.texasattorneygeneral.gov/files/epress/files/20141203ImmigrationExecutiveOrderLawsuit.pdf

[10] U.S. CONST. art. II,§ 3, cl. 5

[11] DeSilver, D. (2014, November 21).

[12] 136 Leading Experts on Immigration Law Agree: President Has Legal Authority to Expand Relief. (2014, September 3). American Immigration Council. Retrieved January 13, 2015, from http://www.americanimmigrationcouncil.org/newsroom/release/136-leading-experts-immigration-law-agree-president-has-legal-authority-expand-reli

[13] Brief for the American Immigration Council et al. as Amici Curiae in opposition to plaintiffs’ motion for preliminary injunction, Texas v. U.S., S.D. Tex. (2014) (no. 1:14-CV-00254)

[14] Texas v. U.S., S.D. Tex. (2014). Retrieved on January 3, 2015, from http://www.texasattorneygeneral.gov/files/epress/files/20141203ImmigrationExecutiveOrderLawsuit.pdf

[15] Min Kim, S., & Epstein, J. (2014, July 14). Obama: GOP failed to pass a ‘darn’ immigration bill. Politico. Retrieved January 13, 2015, from http://www.politico.com/story/2014/06/obama-immigration-reform-108447.html

[16] O’Keefe, E., & Costa, R. (2014, August 1). House passes Republican measure on border security. Washington Post. Retrieved January 13, 2015, from http://www.washingtonpost.com/politics/house-gop-moves-closer-on-immigration-bill-ahead-of-recess/2014/08/01/11084a2e-1983-11e4-9e3b-7f2f110c6265_story.html

[17] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

Continue your research.  For more information check out these sources:

White House Executive Orders on Immigration

Texas v. United States Court Filing

American Immigration Council

Cato Institute Immigration Research

Center for American Progress Immigration Research

Heritage Foundation Immigration Research

Reflection

As the producer of this content I hold myself responsible for the validity of the information I have presented. Since I am not a professional journalist, I have taken precautions to best instill your confidence in my reporting. I have attributed any content that is not my intellectual property, with the original source. In producing this article, it is important that I provide you with the proper resources to conduct your own research and analysis – I have done so, citing the sources I used for my research and additional sources with which you can continue to conduct research. I have attempted to engage in unbiased reporting by forgoing analysis and providing facts based upon other credible reports.

I utilized first-hand resources – court documents, cited scholarly research, videos – to establish a baseline for my knowledge in laying out the facts of the executive actions on immigration. The media articles I utilized were to discuss the arguments for or against the actions. Any media source I utilized was thoroughly vetted utilizing the first-hand resources to ensure accuracy.  Additionally, I verified all content through multiple-source reporting to further guarantee accuracy.

I receive no financial or self-interest gain by providing incorrect facts or skewing the information in favor of one ideal over another.

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