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The States’ War on Executive Amnesty

The States’ War on Executive Amnesty

The battle against executive overreach begins

Last year 17 states took a stand against President Obama and his plans to use an executive order to remove nearly 5 million illegal immigrants from the bounds of existing immigration law.

The coalition, now made up of 25 states and led by Texas’ new Governor Greg Abbott, will present oral arguments today advocating both to suspend implementation of Obama’s immigration plan, and for the life of the lawsuit crafted to stop it.

This type of lawsuit is unprecedented in scope. We know that the President holds certain powers of prosecutorial discretion; but do those powers extend so far as to allow a blanket amnesty without any sort of Congressional approval or legislatively-based change to existing law? And if it does, how should the law account for disparate financial impact to the various states?

All novel questions that the court will have to consider.

Via the San Antonio Express-News:

Legal scholars say the issues of deferred action and executive discretion on matters of immigration have been upheld in court many times before, and yet predicting the outcome of this lawsuit is difficult because of its unprecedented scale.

“Under current case law, there is no basis to find this action illegal,” Chishti said. “But there has never been a case of 5 million, and therefore one might argue that prior cases don’t apply.”

Abbott has said Texas shouldered the financial brunt of Obama’s 2012 executive action on deferred action, costing taxpayers tens of millions of dollars for an increased police presence on the border, along with health care and education costs.

Those costs will contribute to the states’ case when they argue that they have standing to sue the federal government. If the states can prove that they or their residents will suffer because of these policies, they will be granted standing to sue; if not, it’s back to the drawing board.

The Administration’s lawyers will argue that the type of deferred action called for in the executive order isn’t unprecedented, and that there’s nothing on the books that specifically limits the scope of prosecutorial discretion to one person, or ten people, or even a thousand people. That being said, there’s also nothing on the books that explicitly addresses the issue. This is the states’ opportunity to lay out the case for the type of 10th Amendment-style pushback that will act as precedent to roll back the government in other policy areas such as health care and regulatory control.

This is win-win for both the coalition states and for small government activists. Amnesty advocates will argue that this is nothing but a stunt, but while they’re screaming about local politics, the states’ lawyers will be shining a spotlight on just how massive an overreach this executive order really is.

This is our opportunity to stop talking about this issue in the context of the current administration, and start emphasizing the underlying problem that is the progressive idea of expanding, centralized government. Obama will be out of office in two years, but if this policy is allowed to stand, its effects will mean millions of taxpayer dollars flushed down the toilet to fund the Democrats’ latest fever dream.


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if this policy is allowed to stand, its effects will mean millions of taxpayer dollars flushed down the toilet to fund the Democrats’ latest fever dream.

Millions? Is that a typo? Obama’s amnesty scams will cost BILLIONS of dollars to taxpayers — every year — for decades to come. The vast majority of the illegal aliens being granted amnesty are poor, unskilled, and with an average 8th-grade level education. U.S. taxpayers will be on the hook for their education, their medical care, their food and shelter, and — for the many who will commit criminal acts in the U.S. — for the costs of their arrest, prosecution, and incarceration.

pablo panadero | January 15, 2015 at 9:09 am

Previous articles on this site and others have indicated that Obama has not issued an executive order, rather the administration has merely released a memo from the head of Immigration and Naturalization Service.

I would believe that another effort should be made to haul the INS head into congress and have him explain the constitutionality of HIS action – not Obama’s action or inaction. If he can produce no document that indicates that this is a directive of the President, then he can then be impeached by the House and convicted by the Senate. This is completely separate from the issue of whether the President has this authority, as it appears that Obama is purposefully not signing an executive order.

If people within the Executive branch know that they could be impeached while Obama has his own rear covered by lack of documentation, it may propel a few of them to demand that they see documents that give them both authority and cover their behind.

    Ragspierre in reply to pablo panadero. | January 15, 2015 at 9:28 am

    I don’t think your idea is bad, but it isn’t as “killer” as you think.

    What’s the functional difference between an Executive Order and an Executive Memorandum? I suggest that there isn’t much…if any.

    Now, of course IF you can catch one of the agency heads acting without ANY executive support, THAT would be juicy.

    Still, with these guys in the Obami, they’d just issue something ex post facto and say it was all a goof up and defy you to do anything about it.

      pablo panadero in reply to Ragspierre. | January 15, 2015 at 9:50 am

      Then have him produce the executive memorandum, email, or note scribbled on a White House tablecloth. And have the courts decide whether any of this has any force of law.

      John Boehner’s point about Obama saying multiple times that he could not change the law directly, and the fact this is not prosecutorial discretion (i.e. this is not an individual judgement on a single case, but a policy affecting thousands) might have had Obama reason that he wanted some plausible deniability. Thus the lack of executive order and hanging the IHS guy out to dry.

        Ragspierre in reply to pablo panadero. | January 15, 2015 at 11:58 am

        I think all that is swell.

        But let’s brain-storm here a bit…

        Congress requests/demands the memoranda, AND…

        1. Barracula produces them.

        2. Barracula publicly refuses.

        3. Barracula simply ignores the request/demand.

        Now what? Congress cannot very well impeach an agency head in the circumstances, because they may very well be acting as directed by the Chief Executive, which is perfectly legal (the basic unconstitutionality of the whole deal notwithstanding).

          retire05 in reply to Ragspierre. | January 15, 2015 at 1:06 pm

          It will not be Congress demanding a copy of the EO/Presidential Memorandum, it will be the Federal Court demanding it. Good luck with the Administration claiming Executive Privilege for an EO that should have been made public.

          The argument is going to be: can you unfairly, and unequally, tax a state, or create a financial burden to a state, for a federal program that does not place that financial burden on all states equally? That is not a Congressional issue, but a court issue of Constitutionality.

          Ragspierre in reply to Ragspierre. | January 15, 2015 at 1:21 pm

          If you read Pablo’s original post, to which I am responding, he explicitly couches the proposition in terms of Congressional oversight.

          Or am I mistaken?

        Pablo, you’re correct that there is not a dime’s worth of difference between an Executive Order and a Presidential Memorandum.

        But those documents need to be produced to the court as a directive from Jeh Johnson holds no real weight.

        There is real financial impact to citizens for this [unlawful] order. Tax payers will be required to pick up the tab for the education of these illegal alien children, not only in basic instructions, but in extra services like English as a Second Language courses which require Spanish speaking teachers in an English speaking state as well as tutors to bring the UACs up to age standards (UACs are placed in age appropriate grades which means if you have a 14 year old that can barely read, they are placed in a high school freshman class and are retired to be tutored to bring them up to standard); free breakfast and lunch programs funded by the taxpayers; free medical care via Medicaid, etc. With an estimated 5,000 UACs dumped on the Houston Independent School district at an individual cost of over $8,000 per student, that is not chump change. Ad Valorum [property] taxes will necessarily sky rocket to fund the schools required to absorb those UAC students.

        Since these UACs have been sent to specific states, dumping the financial burden unequally, is there any court precedence that allows that unequal taxation required to find the benefits provided to the UACs? I doubt it. Is there not precedence regarding undue and unequal burden of taxation?

          pablo panadero in reply to retire05. | January 15, 2015 at 12:31 pm

          No argument from me on whether there is a constitutional case to be made. My argument is that a SECOND front should be opened which personally targets those enforcing Obama’s unconstitutional directives.

          “I was just following the directions of my superior/boss” is not a valid defense for law enforcement, soldiers, or employees of private industries. It should not and cannot be a defense of enforcement of unconstitutional acts.

    I read all the comments responding to you, and I think my buddy rags has a point but he misunderstands the impact of what you are proposing.

    No official (of govt) has authority to create his/her own authority. This includes el presidente but let’s ignore him for awhile because invertebrate GOP is afraid of him.

    Any fed official knows where his/her authority is located in the US Code. The standards for the operation of each particular job is specified in official policy. Where the train leaves the track is when lo-info joe maltliquors assume that the regulations stand on their own, and therefore can be changed willy-nilly.

    Official policy is for officials to follow. It is not for the people. But it’s purpose is to enable each employee to use the same actions and standards when performing his/her job (which is to execute the law).

    Any officials who act outside of policy put themselves at grave risk of losing their jobs, or some lesser discipline. They also put themselves at risk for being sued for damages if a tort claim can be made out under the facts. It seems to me that few officials/employees will be willing to take such a risk on their shoulders for no benefit.

    Any CFR change has to follow protocols, among which are public comment and printing it in the Federal Register. Executive Orders are printed in the federal register. Any policy that isn’t in the federal register does not exist in a legal sense (this does not apply to national security like CIA). If it doesn’t exist in a legal sense then anybody who obeyed a letter from upper echelon would be an idiot. This applies to these so-called “training booklets” recently sent to field offices.

    I have a motto for certain situations: Call 1-800-LETS SUE

      ConradCA in reply to platypus. | January 16, 2015 at 12:51 pm

      No federal employees were fired or lost their jobs because of the IRS’s violations of conservative groups civil rights. The same think will happen here.

Pablo has a point. Make the rank and file vulnerable and eventually one or more will turn state’s evidence against him.

I would however bet a large chunk of change that Obama has a set of presidential pardons signed and waitingin a safe in the oval office for every one of his top level cronys.

    retire05 in reply to rorschach256. | January 15, 2015 at 12:07 pm

    Signing 5 million pardons should keep him busy for a while and off the golf course.

    Oh, well, Obama’s game is not that good anyway.

Professor, is it possible for a president to issue a presidential pardon to himself? would not shock me if obama tried to do that as well.

CaliforniaJimbo | January 15, 2015 at 10:30 am

I would like to see willing border state governors (California will never do this) to simply close their international borders. Do not allow people from the international border to enter their state. Let the feds have their border gate that lets them in and set up the state barrier just outside of the federal jurisdiction. Enforced by the national guard. Then Gov Abbot can just tell Obama “So sue me!”

    That is EXACTLY what Governor Brewer should have done. I don’t think these people are seriously opposed – they just like to say they are.

    It ain’t a sovereign if it doesn’t defend itself and if it doesn’t defend its boundaries. What the heck do these fools think the Eleventh Amendment is for?

“Abbott has said Texas shouldered the financial brunt of Obama’s 2012 executive action on deferred action, costing taxpayers tens of millions of dollars for an increased police presence on the border, along with health care and education costs.”

The Progressive Fascists want to turn Texas into a Progressive fascists state. That will turn the USA into a one party state with the Progressive Fascists in charge. There will be nothing protecting us from their evil designs.