Legal Experts: Executive Order on Immigration Tough to Challenge

Tuesday, 29 Jul 2014 11:02 AM

By Andrea Billups

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When President Barack Obama picks up a pen to use his presidential powers on immigration reform, he's likely to have a clear path with little legal leverage for opponents to fight back, Politico reports.

"The court route, I don't see it," former Bush immigration official Jan Ting said of Obama's expected executive action next month.

Added UCLA law professor Hiroshi Motomura: "There isn't really anyone who would be in a position to complain."

The president, under fire for his handling of the border crisis and a massive influx of young immigrants from Central America, is expected to create his own vision for immigration as the House refuses to act on reforms.

About 5 million out of 11 million immigrants thought to be living in the United States could see protection from the president, who will likely work to make sure those who have successfully lived in the country are shielded from future deportation fears, according to the Los Angeles Times.

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Legal observers compare any threats of a legal roadblock on immigration to the quandary experienced by House Speaker John Boehner, who has planned to sue over delays in Obamacare, but must show a need for the federal courts to engage.

Moving forward on immigration should be fairly easy, using the theory of prosecutorial discretion, a power embraced by the executive branch that determines what skating room federal authorities have to determine how a law is enforced.

"There is, I think, a general consensus that his authority to take executive action is fairly wide as long as it is based on executive branch authority to use prosecutorial discretion to decide how people are treated who are subject to deportation," said Doris Meissner, who served as Immigration and Naturalization Service Commissioner under President Bill Clinton.

"He’s got a continuum of options from a fairly narrow reworking of deportation priorities all the way to a new program of some kind that would allow more numbers of people to apply for work permits of some kind," she added.

Prosecutorial discretion will likely help Obama on immigration, Motomura told Politico.

"We have a system that runs on discretion. There are 11 million people in the country who in theory are not supposed to be here. Congress has funded the capability to deport maybe half a million people a year," he noted, adding a legal bar to broaden a deferred action program is simply not in place.

"He could expand it to people who are closely related to those people who have been standing in line to be approved," Motomura said of Obama.

The president, under harsh criticism by Republicans for the border crisis, pushed back on their own congressional inaction as he announced his plans to move ahead alone. Thus far, legislative attempts to overhaul immigration policy have failed in Washington, The New York Times reported, noting that no further action is expanded on a new law this year.

"While I will continue to push House Republicans to drop the excuses and act — and I hope their constituents will, too — America cannot wait forever for them to act," Obama said. "I’m beginning a new effort to fix as much of our immigration system as I can on my own, without Congress."

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