A group of constitutional experts will offer testimony Tuesday to the House Judiciary Committee and Chairman Bob Goodlatte on President Obama’s recent executive order regarding immigration. U.S. Rep. Goodlatte has said the witnesses would include “several legal scholars on the unconstitutionality of the executive actions.”
But in a conference call organized by the liberal Center for American Progress, two constitutional scholars not invited to the hearings say that Obama’s orders do pass constitutional muster.
Noting a section that a section in the U.S. Code enacted by Congress has already expressly declared that the Department of Homeland Security is responsible for national immigration, Walter Dillinger, a former U.S. solicitor general under President Bill Clinton, called the hearings that Goodlette will hold “somewhat odd.”
He said that the Department of Homeland Security has been charged by Congress with establishing national immigration enforcement policies and priorities. “And exactly what has happened here is the establishment of immigration priorities by the Department of Homeland Security, with the direction of the president,” Dillinger said.
“There is not even an assertion of executive orders, no assertion of presidential power, but rather an exercise by the Department of Homeland Security of the discretion to set priorities that has been expressly conferred upon the department by an act of Congress,” Dillinger said. “And if Congress disagrees with the priorities that have been set, it can direct the president to adopt different priorities,” he continued.
“This is an issue where there is no contrary congressional judgment,” he averred. “There’s nothing unusual about this, except for perhaps the scope of the temporary delay in deportations.”
Obama’s actions will shield up to 5 million undocumented immigrants from deportation.
“From the day he took office, President Obama has spent every penny Congress has ever given him for immigration enforcement, and he deported record numbers of immigrants,” said Stephen Legomsky, from the Washington University in St. Louis School of Law. “Even with the president’s recently announced actions, there will be another 6-7 million undocumented immigrants not covered, and the president still will have only enough resources to go after about 400,000 of them a year. None of the actions that he just announced are going to prevent him from enforcing the immigration laws as fully as the resources that Congress has given him will permit. Therefore, when people say that the president is not enforcing the law…it’s hard to figure out what they’re referring to,” adding that the president is “not a magician. He can’t spend money he doesn’t have.”
Legomsky said that if President Obama opted not to spend the money Congress has allocated for deportation, “Then I think a serious legal issue would be presented. But we’re nowhere close to that point.”
Responding to critics who say that Obama has now rewritten the immigration laws, Professor Legomsky said he’s actually done the exact opposite. “He’s exercised the discretionary powers that the current immigration laws have explicitly recognized for many years.”
And in case you think it’s obvious that these scholars are partial to Obama, check out the comments made in The Hill by Alfonso Aguilar, who headed the Office of Citizenship under President George W. Bush. He says there’s “no way” that the plan floated by some House Republicans (including David Jolly) to defund monies for the executive action would work because the key agency — the U.S. Citizenship and Immigration Services (USCIS) — operates on a fee basis, in lieu of congressional appropriations.
As for the lawsuit tactic, Aguilar, now head of the Latino Partnership for Conservative Principles, says that that approach would fail. “The case law is not on the Republican side,” he told the Hill.
