Immigration: 5 Facts About Legal Challenges to Executive Action

Recent lawsuits that challenge executive action on immigration are unlikely to proceed. They miss the legal rationale for the action and ignore the large economic benefits it could bring.

Posted on 12/20/14
By Silva Mathema & Philip E. Wolgin | Via Center for American Progress
A Pakistani activist Shahid Comrade at a New York City rally demanding end to deportations. (Photo by Michael Fleshman, Creative Commons License)
A Pakistani activist Shahid Comrade at a New York City rally demanding end to deportations. (Photo by Michael Fleshman, Creative Commons License)

On November 20, President Barack Obama announced executive action on immigration that includes, among other provisions, a policy that could provide temporary relief from deportation to approximately 4.4 million undocumented immigrants in the United States. But because only Congress can pass legislation to create a pathway to permanent legal status, this action necessarily falls short of the benefits that full legislative reform could offer.


Opponents of this action, including mostly Republican attorneys general and governors from 24 states, have sued the government to challenge the action’s legality. So has the notoriously anti-immigrant Arizona Sheriff Joe Arpaio, whom the Department of Justice previously sued for a “pattern or practice” of discrimination against Latinos. In a separate and unrelated decision, a Pennsylvania judge with a history of erratic rulings opined that the executive action was unconstitutional. That opinion, however, had no actual impact on the action or the force of law because it had no bearing on the legal dispute in the case, which involved an unrelated criminal matter.


These lawsuits rest on the shakiest of legal foundations. The president’s action is predicated on his constitutionally grounded authority to exercise prosecutorial discretion. The Department of Justice’s Office of Legal Counsel has clearly and openly laid out a conservative legal rationale for the action. It is also only the latest in a long series of administrative relief actions taken by every president since Dwight D. Eisenhower. Significantly, while the individual states suing President Obama claim that executive action will harm their economies—concrete harm is a necessary precursor to file suit—they overlook the fact that allowing immigrants to work legally will benefit, not harm, state economies.


Here are five important facts you need to know about legal challenges to executive action.


1. This executive action is perfectly legal

As part of the executive action, the Obama administration released a comprehensive memorandum from the Office of Legal Counsel to explain the action’s legal underpinnings. Rather than changing existing laws, the Department of Homeland Security will focus its limited enforcement resources on serious criminals, not parents and young immigrants. While 4.4 million people will be able to request temporary protection from removal and work permits, the president cannot grant anyone permanent legal status. Applications will be considered on a case-by-case basis—but only after an applicant pays the necessary fees and passes a background check.


2. The president’s actions follow historical precedent

Every president since Eisenhower has taken action on immigration—39 times in total. In 1990, for example, President George H.W. Bush deferred the deportation of undocumented spouses and children under his Family Fairness Policy. His administration believed that executive action could cover up to 1.5 million people, or 40 percent of the undocumented population that year. This percentage is similar to the number of people that President Obama’s directives have the potential to cover.


3. Previous state lawsuits against executive action have failed

This is not the first time states have filed lawsuits against executive immigration action. In 2012, Mississippi—along with several Immigration and Customs Enforcement agents—filed a lawsuit in an attempt to derail the Deferred Action for Childhood Arrivals, or DACA, program, which allowed young unauthorized immigrants to apply for work permits and to request deferral of deportation. Although Mississippi argued that DACA would hurt its economy—due to the education, health care, and law-enforcement costs associated with the program—the District Court of Texas, where the case was filed, dismissed the lawsuit, calling the claims “purely speculative.”


4. States will gain, not lose, economically from executive action

Likewise, while the states’ lawsuit claims that the executive action will negatively affect state budgets, the opposite is true: If eligible undocumented immigrants are allowed to apply for work permits and begin to work legally, they would bring significant tax revenue gains to the states. Ohio, for example, would gain $41 million over five years, and Texas would gain $338 million. Suing the government is not only a waste of time and taxpayer resources, but it also runs counter to the states’ economic interests.


5. Attempts to stop these executive actions threaten to separate families

The success of the states’ or Sheriff Arpaio’s lawsuits would put millions of hard-working, low-priority individuals—meaning DREAMers and undocumented parents of American citizens—back in the deportation crosshairs. Ultimately, blocking the president’s action while failing to pass immigration reform is tantamount to forcibly separating American families. Millions of children will be at risk of growing up without one or both of their parents—and all of the psychological, social, and economic costs that reality carries.



Even some of the state attorneys general who have signed onto the lawsuit believe that immigration reform is necessary. The attorney general of Texas, Greg Abbott—who is leading the lawsuit against executive action—publicly argued that although he does not believe executive action is legal, he does believe that Congress and the president should work together to pass immigration reform. Attorneys general from 18 states recently sent a letter to Congress, urging it to pass legislation beyond the president’s action; at least four of the signatories are also parties to the lawsuit.


Considering that support for immigration reform means supporting permanent legal status for the same immigrants covered by executive action, suing to stop the action is misguided and counterproductive. Instead of attempting to end executive action, the lawsuits’ plaintiffs should see it as the first step—albeit a temporary one—toward comprehensive legislative reform.


Silva Mathema is a Policy Analyst with the Immigration team at the Center for American Progress. Philip E. Wolgin is a Senior Policy Analyst with the Immigration team.

This article first appeared in Center for American Progress. Click here to go to the original.

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