So today is the long-awaited, should-have-happened-months-ago announcement of executive action by President Obama on immigration enforcement and deportation. Stace, the Observer, and Politico have good overviews of what to expect. I personally hope Obama goes big, but whatever he does do the one other thing you can expect is a lawsuit.
Rick Perry said Wednesday afternoon there is a “very real possibility” that Texas sues President Barack Obama over his plan to issue an executive order on immigration, echoing what the governor’s successor has been suggesting for weeks.
In his first public remarks since Obama announced he will detail the action on Thursday night, Perry said the president’s plan “sticks a finger in the eye of the American people with no thought about it” and may hurt Democrats’ long-term prospects of returning to power in Washington.
“I think the president is taking a major, major political chance with what he’s doing,” Perry said. “He’s putting his party in jeopardy, and I think he’s putting members of the Senate and the House in jeopardy.”
Gov.-elect Greg Abbott, who is attorney general for two more months, has floated the idea of filing his 31st lawsuit against the Obama administration if it moves forward with the plan, which is expected to shield from deportation millions of people in the country illegally. Abbott, who is scheduled to participate in a similar event Thursday afternoon at the RGA conference, has said he believes the state has standing in such a case because it can show it has been financially burdened by federal inaction on the border crisis.
Not taking action sure didn’t do Democrats in Congress any good, but never mind that for now. Putting aside the fact that the executive order is likely to benefit the Texas economy since we are so heavily dependent on the contributions from immigrants, the question is whether this lawsuit would be likely to succeed. Given that you can never be sure with this Supreme Court, the answer seems to be no.
Experts agree that the president has wide discretion to decide which migrants to target for deportation under the law enforcement theory of prosecutorial discretion. There are roughly 11 million immigrants in the U.S. illegally and officials have to prioritize which ones to remove. The Supreme Court reaffirmed that wide latitude in the 2012 ruling Arizona v. US, in which the justices said key provisions of Arizona’s strict immigration law ran afoul of federal supremacy in the area.
“Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all,” wrote Justice Anthony Kennedy in the majority decision, joined by four other justices.
The Center for American Progress, an influential liberal think tank, argued in a July 2014 brief: “Even in the civil context, the Supreme Court has made clear that ‘an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.’ The Court has repeatedly affirmed the long-standing principle that the executive branch has virtually unfettered discretion in deciding how and whether to enforce the law against individuals.”
Not that the likelihood of failure has ever deterred Rick Perry or Greg Abbott from suing the federal government, of course. Still, this is no slam dunk, and the bigger Obama goes the likelier he is to cross some invisible fence and deliver a shock to Anthony Kennedy, with predictable results. Be that as it may, this action is long overdue, and if the Republicans want to alienate Latino voters even more, they’re welcome to do so. I look forward to seeing what the President has in mind.