Obama Executive Orders Present Murky Constitutional Questions

It took less than 24 hours for House and Senate Republicans to answer lame-duck Senate Majority Leader Harry Reid, who, according to ABC News, asked the White House to delay the announced executive order on immigration until after Congress passes a spending bill to keep the government running. ABC has also learned that while Democrat Reid believes that President Obama has the power to act independently on immigration, Reid told Senators today that he is concerned that some Republicans will seize on the executive order if Obama signs it too soon, threatening to block the funding bill unless the President withdraws the order. This series of events could lead to a government shutdown if neither Obama nor the House GOP is willing to compromise. ~~~~~ But Senate Republican leader Mitch McConnell was swift to rule out the possibility of a government shutdown, even if the President signs an executive order to protect 5 million undocumented immigrants from deportation. “We’ll not be shutting the government down, threatening to default on the national debt,” McConnell told reporters today. And when reporters demanded whether a fight over immigration could break that pledge, McConnell said again: “We’ll not be shutting the government down or threatening to default on the national debt." Hours later, however, House Speaker John Boehner disagreed, saying a government shutdown could not be ruled out. Several Republicans are already threatening to try to hold up the spending bill over immigration, and Boehner said all options were on the table, declaring : “We’re going to fight the President tooth and nail if he continues down this path.” A government shutdown is not the preferred route, Boehner said, but added it could not be ruled out : “Our goal here is to stop the President from violating his own oath of office and violating the Constitution...It’s not to shut down the government.” Reid first expressed his concern about immigration during an off-camera conversation with a CNN producer, saying: “I’d like to get the finances of this country out of the way before he [President Obama] does it, but that’s up to him.” ~~~~~ For his part, President Obama seems to be fanning the flames that surround him by saying that he is "looking forward" to imposing an executive order that will give amnesty to millions of illegal immigrants. According to White House press secretary Josh Earnest, just two days after the midterm election that thoroughly rejected Democrats, the President announced his intention to unilaterally move forward with executive plans on immigration, at the same time that Speaker Boehner and incoming Senate Majority Leader McConnell warned that it would be a bad start to establishing a constructive working relationship with Congress. Earnest told Jorge Ramos of Fusion TV : "The President made a promise in the fall that if Congress didn't act that the President himself would take executive action to try to solve the problems of our broken immigration system before the end of the year. The President is going to keep that promise and is going to make that announcement before the end of the year. And it reflects a disappointment on the part of the President." Earnest blamed House Republicans for failing to pass the Reid-Democrat Senate immigration reform bill that both the GOP and most Americans disagree with. Earnest said this is what has forced the President to take action himself : "The President is disappointed that this legislative solution won't be achieved, but the President is looking forward to taking executive action on his own to solve as many of these problems as he can." ~~~~~ An outline of the immigration executive order that President Obama will sign was made available by the White House this week. It contains 10 executive actions that suspend deportations for and legalize more than 5 million illegal immigrants. The draft proposal to a federal agency was leaked to Fox News, according to the network. Obama's announcement could come as early as November 21 or shortly thereafter, a White House source told Fox. The President was briefed by the Department of Homeland Security before he left for his Asia trip. The most controversial elements would expand deportation deferrals not only to illegals who came to the US as children, but to the illegal-status parents of US citizens born in this country. Fox reports that the parental expansion could allow as many as 4.5 million illegal adults with US-born children to remain in the country. Obama's orders also would expand the Deferred Action for Childhood Arrivals program he created in June 2012. DACA affected millions of illegals who were brought to the United States as children before June 2007 and who were under 31 years old as of June 2012, when the program started. But, the new Obama order would expand DACA to cover anyone who entered the US before age 16 - and would move the cutoff date back to January 1, 2010. This is expected to add nearly 300,000 illegal immigrants to DACA coverage, according to Fox. In addition, a State Department immigrant visa program covering technology jobs would offer another half-million immigrants a path to citizenship. Spouses also would be helped under the program. According to Fox, the DHS plans to "promote" the new naturalization process by giving a 50% discount on the first 10,000 applicants who come forward, with the exception of those whose incomes are above 200% of the national poverty level. Other planned executive actions would increase pay for Immigration and Customs Enforcement officers - to "increase morale" within the agency - and the administration would revise its priorities to target only serious criminals for deportation. ~~~~~ Senator McConnell who said earlier that Obama's executive order approach to immigration reform was like "waving a red flag in front of a bull," reiterated his opposition to Obama's acting alone on immigration in a Wednesday speech on the Senate floor : "President Obama has a duty to help build the trust we all need to move forward together, not to double-down on old ways of doing business...That's why I think moving forward with the unilateral action on immigration he's planned would be a big mistake." ~~~~~ Dear readers, President Obama's determination to act on immigration by executive order is based on legal precedents that give the executive branch broad rights to exercise “prosecutorial discretion” in how it enforces the laws. Those precedents upheld the 2012 DACA that protected from deportation the so-called Dreamers, who came to the US as young children. Attorney General Eric Holder said yesterday : “I’m confident that what the President will do will be consistent with our laws.” The White House expects many outside legal experts to back the administration. However, Speaker Boehner found support from GOP leaders yesterday about filing a lawsuit over the President’s authority to protect millions of undocumented immigrants from deportation. Using the courts to express dissent with such an Obama action is seen as showing strength and signalling to conservatives that Boehner shares their frustrations about the President’s use of executive power. A final decision would be made only after consulting GOP House members following a White House executive order on immigration. Boehner's goal is to halt what he sees as the President’s unconstitutional power grab in using executive orders for issues that should be addressed by Congress as legislative matters. This battle is being fought in murky constitutional waters and it may be difficult for Boehner to find a federal court willing to hear the lawsuit that the courts may see as raising a question that the Constitution expects the Congress and the President to resolve, without judicial intervention. But there is also the possibility that a federal court could see the question as being about the constitutional limits of congressionally uncontrollable executive power. Of course, the other, more direct option would be for Congress to refuse to approve funds for any Obama immigration executive order. Stay tuned.