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Nevada Attorney General to Judiciary Committee: 'Lawsuit Not Ultimately About Immigration'

With a porous border, an ad hoc “amnesty” policy for illegal immigrants, and a justice system so backed up it won’t hear some illegal aliens’ cases until December — of 2019 — the Obama administration’s immigration policy has been an abject failure.

That’s the conclusion of Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, who opened a hearing last week with a scathing indictment of President Obama’s record on immigration. The hearing, which at times devolved into back-and-forth bickering among legislators and witnesses, focused on the president’s most recent executive order on immigration. It would allow as many as 5 million aliens to not only stay in the U.S. legally, but to collect a slew of benefits as well.

“In absolutely no way can President Obama’s actions be considered [justified, and] are a clear violation of his constitutional responsibility to faithfully execute the laws,” Goodlatte said at the start of the hearing.

The hearing was the GOP’s latest salvo in an attempt to roll back the president’s executive orders on immigration, which began in 2012 with a promise to defer deportation of hundreds of thousands of illegal immigrants brought to the U.S. as children. Obama continued his unilateral orders in 2013 with one making it easier for illegal aliens with familial ties to U.S. citizens to stay in the country. Then, in 2014, the administration announced plans to ease entry into the U.S. for thousands of Central American children, a move designed to prevent a repeat of last summer’s border crisis.

Now the president’s latest action deferring deportation to nearly 5 million aliens is going into effect. Obama announced the order in November.

‘Power Grab’

Last Wednesday, Goodlatte called it “one of the biggest constitutional power grabs ever” by a president.

The congressman said Obama’s actions amount to an abuse of power — one that will likely lead to a “constitutional crisis” if it goes unchecked, Goodlatte said.

“No administration has so abused and misused the power of prosecutorial discretion as has the Obama administration,” he said. “By assuming legislative power, [he is] tilting the scales of our three-branch government in his favor.”

The White House counters that Obama’s order includes millions of dollars for enforcement, including funds to help shore up the border with Mexico. What’s more, Democrats say, Obama would not have to act unilaterally in the first place if Congress would do its job and fix the immigration system with a comprehensive reform measure.

Republicans say they have passed bills addressing the immigration issue, but Democrats in Congress have continued to thwart their efforts. Whatever Congress has or has not done, though, is moot, Republicans say. The fact is, the president has no constitutional authority to implement any of his immigration edicts, the GOP contends, regardless of what Congress has done.

“One person does not make law in a republic,” committee member and Rep. Trey Gowdy (R-S.C.) said during the hearing. “The thread that holds the tapestry of our country together is respect for, and adherence to, the rule of law.”

Nevada Attorney General Adam Laxalt, one of the witnesses, agreed. He referenced a lawsuit brought by 26 states, including Nevada, to stop the Obama administration from carrying out the president’s immigration order. A judge recently issued a temporary injunction that puts the order on hold for now. Supporters of the president say the injunction is based on a technicality and does not address the merits of the case. But plaintiffs note that the judge has said the suit is likely to prevail with the arguments it makes against the order.

“While immigration is the substantive issue underlying the president’s executive action, this lawsuit is not ultimately about immigration,” Laxalt said. “Rather, it is about the president’s attempt to change the law through unconstitutional executive action.”

The great-grandson of a Basque immigrant sheepherder, Laxalt told the panel how his grandfather, Paul Laxalt, a first-generation American, rose to become governor of Nevada and a U.S. senator from the Silver State.

“In our nation’s history, similar stories have been repeated over and over,” Laxalt said. “They are what we have come to know as the American dream. However, it has never been true that in order to sympathize with the plight of immigrants, or to believe in the American dream, one must reject our constitutional system.”

Prof: Discretion Comes From Congress

But Stephen H. Legomsky, a professor at the Washington University School of Law, told the committee that the president was in no way rejecting the Constitution with his immigration order.

“The president’s actions are well within his legal authority,” Legomsky testified. “And this is a conclusion that’s shared not only by the Justice Department’s Office of Legal Counsel, but also by the overwhelming majority of our country’s immigration law professors and scholars.”

Indeed, the president based his authority on a memo by the Justice Department that says the administration’s right to prosecutorial discretion — that is, a right to prioritize enforcement efforts — allowed him to legally issue his order.

“In the specific context of immigration, Congress has explicitly authorized — arguably, in fact, required — the Department of Homeland Security to exercise prosecutorial discretion,” he said, citing the statute detailing the rights and responsibilities of DHS. “Congress expressly makes the Secretary of Homeland Security responsible for ‘establishing national immigration enforcement policies and priorities.’”

That, in turn, Legomsky said, is the very definition of prosecutorial discretion.

But other witnesses disagreed, saying that while the law provides DHS and other federal agencies wide latitude in how it accomplishes its mission, it does not give the president — any president — the right to make wholesale changes to the law. That’s what Republicans say Obama has done here.

“Unilateral immigration reform by the president [sets] a dangerous precedent,” Elizabeth Price Foley, a law professor at Florida International University, told the committee.

The president’s orderm she said, threatens the very pillars of democracy on which the nation was built.

“If allowed to stand, [the order] will empower future presidents to flagrantly disrespect Congress’s will, bypass the process of congressional debate and compromise, and allow one person, the president, to undermine our democracy itself,” Foley said.

Some Democratic committee members chose not to defend the president’s actions so much as to slam Republicans for “holding the DHS hostage,” by failing to fund the agency past Friday. No deal had been brokered to provide operational funding for the department as of Friday.

“This Congress is on the verge of forcing over 100,000 DHS employees to work without pay,” Rep. Ted Deutch (D-Fla.) told his colleagues on the committee. “Is this how the new Republican Congress treats people who report to work every day to protect our country?”

Deutch said he believes the president’s order is constitutional, arguing that it does not change the law but simply does what Congress has failed to do — address the growing U.S. immigration crisis with a meaningful, fair and “common-sense” approach.

Gowdy: Disclaimers Needed?

The tension between Democrats and Republicans was evident at times during the hearing, a testament to the divisiveness the immigration issue — and especially the president’s actions — have created in Congress.

Rep. Jerrold Nadler (D-N.Y.) told Laxalt that he was “naïve” for not realizing that the statements Obama made prior to the November order — statements in which he said he could not take the action he eventually took — were “political comments” not to be taken as legal opinion.

Later, Gowdy sarcastically asked Laxalt if he would support requiring elected officials to make a “disclaimer” to go with every public comment they make.

“So that we can know going forward whether he or she really means it, or if it’s just for political expediency,” Gowdy said. “Because I mistakenly thought the chief law enforcement for the entire country would mean what he said when he was making a legal argument, and it was just news to me from Mr. Nadler, that that was all just political grandstanding.”