Republicans Use Constitutional Experts — and President's Own Words — in Debate Over Immigration Decree

With last month’s executive order on immigration, President Obama made “one of the biggest constitutional power grabs ever by a president” — and his own words prove it, the Republican chairman of the House Judiciary Committee said on Tuesday.


Rep. Bob Goodlatte (R-Va.) made his case during a committee hearing on whether Obama overstepped his bounds as president.

The three-hour-long hearing was disrupted several times in the first 45 minutes by protesters calling on Congress to enact comprehensive immigration reform. More than a dozen spectators were thrown out of the hearing room after interrupting the proceedings with shouts of “Stop the deportations!” and signs reading, “GOP, what’s your immigration policy?”

One protester slammed Congress for its inability to act, saying he is a longtime resident of the U.S. who is frustrated with the seemingly endless debate over the issue.

“I’ve been in this country 30 years, man,” the man said as he was escorted from the room by a Capitol Police officer. “And you guys can’t pass a bill.”

Obama announced on Nov. 20 that he would defer deportation of up to 5 million of the estimated 11 million undocumented immigrants currently in the U.S., and allow many of them to apply for work permits. He also announced plans to retain high-skilled workers, strengthen border security and increase pay for Border Patrol officers. The president said his actions not only were constitutional, but also necessary due to the unwillingness of Republicans in Congress to tackle immigration reform.

But Goodlatte refuted Obama’s claim of constitutional authority — just as, he said, the president himself had done over the past two years.

“President Obama has stated over 20 times in the past that he doesn’t have the constitutional power to take such steps on his own — and has repeatedly stated that, ‘I’m not a king,’” Goodlatte said in his opening statement.


He then played a video showing a series of clips in which Obama insists he can’t unilaterally change or make immigration law.

He said the president’s 180-degree turn on the issue has lit the fuse of a “full-fledged” constitutional crisis.

“The Constitution is clear,” Goodlatte said. “It is Congress’ duty to write our nation’s laws and, once they are enacted, it is the president’s responsibility to enforce them.”

But Democrats say Obama isn’t writing new law with his executive order. Rather, they say, he is using the president’s power of “prosecutorial discretion” to limit enforcement of existing law. In defending his order, the president relied largely on a Justice Department memo that says the order meets the criteria for prosecutorial discretion, thereby putting the decree squarely within the president’s authority under the Constitution.

“He didn’t change the law, he acted within the law,” Rep. John Conyers Jr. (D-Mich.), the committee’s ranking member, said in his opening statement. “President Obama decided to use his authority under the law to fix a broken system and I could not be more pleased.”

But Jay Alan Sekulow, chief counsel for the American Center for Law and Justice and one of four witnesses to appear before the Judiciary Committee on Tuesday, disputed the idea that Obama’s order was a simple use of prosecutorial discretion. In fact, he said, it amounted to a wholesale change to immigration law. As Goodlatte had a few minutes earlier, Sekulow used the president’s own words to back up his argument.


“President Obama himself boldly proclaimed that his recent executive action ‘change[d] the law,’” Sekulow testified. “This isn’t just a policy change.”

Thomas H. Dupree Jr., principal deputy assistant attorney general under President George W. Bush, agreed, saying prosecutorial discretion is supposed to be used on a case-by-case basis or in extraordinary circumstances affecting anywhere from one to a handful of people.

It’s generally reserved for individual cases where “in the judgment of the prosecutor, it would be unjust … to apply the full force of the law based on the circumstances of an individual case,” Dupree said.

But its power is not absolute, he added, saying prosecutorial discretion clearly was not designed to give blanket immunity “to a potential class of 5 million people.”

A longtime immigration rights activist, however, testified that Obama’s action is constitutional and meets the criteria for prosecutorial discretion. For one thing, she argued, the order will be applied on a case-by-case basis.

“This is not mass, blanket immunity for 5 million people,” said Marielena Hincapié, executive director of the National Immigration Law Center. “They have to come forward on an individual basis, apply for a temporary reprieve of deportation, [and] pass a national security and criminal background check.”

Only after the Department of Homeland Security determines that an individual meets the criteria and “merits a grant of deferred action” can he or she apply for a work permit. And, even then, they must have an “economic necessity” to get one, Hincapié said.


The president’s order, therefore, doesn’t guarantee anything to anyone, she said.

Furthermore, she added, Obama’s actions are rooted in historical precedent. Indeed, several former presidents have used prosecutorial discretion, and in many instances, those actions involved immigration.

President Reagan, for instance, specifically deferred deportation of Nicaraguan immigrants and allowed them to apply for permanent residence. At the time, Nicaragua was in the throes of  the “contra” counter-insurgency.

“Deferred action has existed for decades,” Hincapié said. “What the president has done here is both constitutional and nothing new.”

But legal experts note that Reagan’s order was “country-specific,” and therefore tied to the president’s constitutional authority to engage in foreign policy.

Other presidents, both Republican and Democrat, have used prosecutorial discretion in domestic cases, but those orders involved far fewer people and were much smaller in scope than Obama’s, said Dupree.

“Moreover, in prior instances, the executive was acting to implement a new statute consistent with the will of Congress,” he added. “Here, [Obama] is taking action precisely because Congress has refused to act in the way the president wants.”

Sekulow went a step further, saying the actions of Reagan and other former presidents including Bush, George H.W. Bush, and Bill Clinton were no more constitutional than Obama’s order.

“Constitutional violations do not improve with time,” he said.

But Democrats and immigration rights activists say past presidential orders have been both legal and large in scope, including the Family Fairness program initiated by Reagan and the elder Bush. The program, designed to keep families that included both legal and illegal aliens together, deferred deportation for over 1 million people, according to Hincapié.


Many Republicans, though, question that figure, and say the number was closer to 100,000.

In any case, Democrats say, the president would not have had to act if Republicans in Congress had done their job.

“The president took action in the face of historic intransigence by Congress,” said Rep. Zoe Lofgren (D-Calif.) “The actions he took are consistent with American values.”

Breaking up families by deporting the parents of children who were born here “encourages further law breaking,” Lofgren explained.

Conyers added that he is “disgusted that Congress has done nothing to fix” the nation’s immigration policy.

“Republican leaders in the House,” he said, “won’t even allow us to vote on the issue.”


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