Even the law professor hired by House Republicans to help them sue President Barack Obama has conceded that the White House tends to have the upper hand when it is challenged by lawmakers in court.
“You always have to bet against Congress when it seeks intervention from the courts,” the professor, Jonathan Turley of George Washington University Law School, said this summer — before he was hired by the Republicans.
The suit is over Obama’s health care law, and it now appears that the administration’s new immigration policy may become part of it.
Turley believes judges are too willing to duck fights that they should take on if they’re to maintain the constitutional separation of powers.
But what about this time? Has Obama gone too far?
The president intends to allow up to 5 million people who are in the United States illegally to remain and to get work permits. The new policy would apply to parents who have been in the US at least five years with a child who is either a US citizen or a lawful permanent resident.
Republicans say he does not have the power to ignore immigration laws by allowing them to stay.
The Constitution says the president “shall take care that the laws be faithfully executed.” The administration’s opponents say that means a president has no power to simply disregard laws he doesn’t like.
But Obama’s defenders say presidents have broad latitude in how laws are enforced, akin to the discretion police and prosecutors exercise in declining to arrest and charge every offender.
Both sides have arguments in their favor, but it appears the courts have never struck down a policy of non-enforcement of a law on the grounds that it violated the Constitution’s “take care” clause.
Here’s a look at the issues surrounding the constitutionality of the president’s new immigration approach.
On Wednesday, Obama said that while everyone agrees that the immigration system needs reform, “unfortunately Washington has allowed the problem to fester for too long.”
His opponents reject this “you had your chance” argument. Congressional inaction, they say, merely reflects the fact that the nation is divided.
“An impasse emphatically does not warrant a president’s bypassing Congress,” conservative legal experts David Rivkin and Elizabeth Price Foley wrote in The Wall Street Journal. “If Congress cannot achieve consensus, that doesn’t mean Congress is ‘broken.’”
The essence of the legal argument against the Obama administration is based on the “take care” clause.
Two conservative law professors, John Yoo of the University of California, Berkeley, and Robert Delahunty of the University of St. Thomas, write in a recent law review article that the clause “imposes on the president a duty to enforce all constitutionally valid acts of Congress in all situations.”
“There simply is no general presidential non-enforcement power,” they say, adding that a president could refuse to enforce a law only in rare circumstances — if carrying it out would undercut his constitutional authority, for example.
The administration’s defenders say presidents for decades have used their discretion to waive or delay application of the immigration laws. They point out that Ronald Reagan deferred the deportation of children whose parents were applying for legal status.
President George H.W. Bush extended the Reagan program to cover roughly 1.5 million unauthorized parents that children. And while that’s far fewer than the five million who could be eligible for the new program, an administration official says the Bush and Obama approaches would cover roughly the same percent of people in the country illegally.
Congress has given the nation’s immigration agents only a fraction of what it would cost to catch and deport every person here illegally. So, the administration argues, the federal agencies must set priorities.
The White House notes that only two years ago, the Supreme Court found that a principal feature of the immigration enforcement system is "the broad discretion exercised by immigration officials."
"Discretion in the enforcement of immigration law embraces immediate human concerns," the court said.
The Obama administration also argues that its policy of keeping children and their parents together is consistent with a federal law, passed by Congress, that allows adult children who are US citizens apply for visas for their non-citizen parents.
"Congress has already determined that it’s a relationship worth protecting," says a senior White House official.
One issue, however, may be whether the sheer number of people affected by the new immigration policy takes it beyond the realm of case-by-case determinations, where enforcement discretion is on more solid ground.
"If the president may constitutionally permit 15 percent of the nation's illegal immigration population to remain in the United States without fear of removal, why may he not do the same for 50 percent of that population, or for all of it?'" asked Delahunty and Yoo.
It comes down to whether the administration’s new immigration policy is acceptable discretion, like the kind prosecutors exercise, or whether it amounts to an abdication of the government’s duties imposed by Congress — an issue it appears congressional Republicans want to take to court.