Republicans Say Obama’s Immigration Action Challenges Constitution, But History Says Otherwise

CREDIT: White House/Pete Souza

House Speaker John Boehner (R-OH) and House Judiciary Committee Chairman Bob Goodlatte (R-VA) slammed President Obama for his forthcoming executive action on immigration, claiming that the action could “inject serious constitutional questions into an already heated debate,” according to a joint statement released Thursday. But two new reports by the Immigration Policy Center and Center for American Progress point to a wellspring of precedent demonstrating that presidents have used executive action to enforce immigration law, especially when it’s justified by humanitarian reasons.

In their statement, the two House Republicans charged that Obama could challenge the Constitution by flexing his executive muscle, an action that they threatened could set back the chances of passing permanent immigration reform. They also criticized White House press secretary Josh Earnest who just the day before said that the White House would delay immigration action until after November because Republican candidates would “make the immigration issue central to their campaign.”

“It’s shocking that the White House now openly admits that President Obama is delaying his unilateral actions on immigration until after the November elections simply because of raw politics,” the pair wrote in their statement. “Whether before or after the election in November, it is never acceptable for the President to re-write our laws by executive decree – the Constitution does not give him the authority to do so. By taking unilateral action on immigration, President Obama will inject serious constitutional questions into an already heated debate.”

Though Congress can enact permanent immigration legislation, Boehner and Goodlatte have repeatedly pushed forward an anti-immigration agenda in the House to stop the expansion of the President’s 2012 executive action known as the Deferred Action for Childhood Arrivals (DACA) program. The program has already granted temporary legal presence and deportation relief to about 600,000 undocumented immigrants. The atmosphere is equally toxic in the Senate where every Republican senator voted in support of a failed effort to prevent new DACA applicants. In July, House Republicans lobbed a lawsuit against the President claiming executive overreach on a number of areas, with an especially large bull’s-eye on health care. Goodlatte already threatened to sue the President last month on expected executive action that some analysts surmise may expand on the DACA program to millions of undocumented immigrants.

By now, Republicans chastising President Obama on executive action is old hat, if not a good delay tactic to stall Congress from enacting immigration reform. It’s also been a useful trope to use in smear campaigns to conflate allegations that Democratic candidates who support so-called “amnesty” also support terrorism. But back in July, Boehner complained that the President should take executive action to deal with immigration, just a day after the House took up a lawsuit against the White House. And despite not allowing a vote through a formal process in Congress, Boehner recently said that immigration reform could “help our economy, but you’ve got the secure the border first.”

Two recent reports point to a bevy of precedent for this sort of executive action. Eleven presidents since President Eisenhower has taken executive action on immigration, extending protections of people from specific countries, individuals with certain attributes, or those possessing common equities such as spouses and children, according to the Immigration Policy Center. Presidents have taken large scale executive actions including “paroles of up to 600,000 Cubans in the 1960s and over 300,000 Southeast Asians in the 1970s, President Carter’s suspension of deportations for over 250,000 visa-holders, and President Reagan’s deferral of deportations for up to 200,000 Nicaraguans.” Other examples that IPC found include “family-based actions,” which suspended the deportation of some individuals and “actions while legislation was pending,” like the parole of Cuban asylum seekers fleeing Castro and deferred action to some battered immigrants.

As Greg Sargent from the Washington Post points out, prior administrations have “used prosecutorial discretion to protect both individuals and groups from removal — and have historically justified these actions with humanitarian reasons.”

Several immigration experts have pointed out that while it is up to Congress to set federal parameters on who can immigrate into the country and finance “various programs to deport those who don’t have legal status, those very same federal laws also give the president considerable flexibility on how to enforce immigration laws.” And more than 100 immigration professors signed a letter last month stating that the president has the legal authority to exercise prosecutorial discretion when deciding how to enforce immigration laws, a claim that they say has basis in the Constitution and has already been made into law. The letter indicates that while the impending immigration action could affect millions of undocumented immigrants, a “serious legal question would arise if the administration were to halt all immigration enforcement,” which the professors counter has not happened.