Reports that President Barack Obama could use executive orders to enact immigration policies could force a showdown with Republicans with broad constitutional implications.
Stories from the Associated Press, the Los Angeles Times and Politico indicate that the White House is considering using executive orders, a tactic already heavily criticized by Republican leaders, to defer some deportations and expand work permits to currently illegal immigrants.
With House Republicans already set to sue President Obama in federal court over what are seen as executive abuses of power over the Affordable Care Act, such aggressive actions from the White House wouldn’t go unchallenged.
But the big question is how would the GOP challenge immigration reforms through executive orders on constitutional grounds?
Josh Gerstein from Politico went over some of the legal roadblocks to a GOP challenge in an extensive story on Tuesday.
“Legal experts see any challenge to the expected immigration policy changes headed for the same key roadblock facing House Speaker John Boehner’s planned suit over Obamacare implementation delays: finding a way to show the injury needed to press a case in the federal courts,” said Gerstein.
Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, recently explained this issue of standing in a Constitution Daily analysis for readers.
“The Constitution’s Article III has a simple requirement that must be satisfied by any lawsuit that is filed in federal courts, and it is a make-or-break requirement. If the lawsuit does not involve a genuine ‘case or controversy,’ under Article III, a federal court simply has no authority to decide it,” he said.
“Because of Article III’s requirements, there are three things that an individual or institution must prove – up-front – before such a lawsuit could go forward in federal court. The suing party must first show that the other side has caused it an ‘injury in fact’ – that is, a genuine harm, not a fanciful or theoretical harm,” Denniston said. “Next, there has to be proof that the other side caused that injury. And, finally, the injury must be of a kind that the court can remedy by ruling in favor of the suing party. Those three requirements are what lawyers and judges refer to as ‘standing’ requirements – that is, a right to sue in federal court, in keeping with Article III.”
