It must be noted at the beginning of this discussion to remind readers of what is not stated, along with what is.
Back in November of 2014 President Obama announced his intention to “fix a broken immigration system” with his pen. The basic outline was sold by the White House as a pending “executive order”. However when the immediate debate erupted around presidential authority in that regard most readers will note that an “executive order” was never actually issued. Instead, after delivering his nationally televised speech, Obama directed Jeh Johnson to modify his DHS immigration enforcement approach with what was/is now called an “executive action“.
The difference between what Obama promised to the illegal alien community via an “executive order”, and what was delivered days later via an “executive action” reflects a key legal distinction affirming the reality that an “executive order” -to intentionally subvert legislative authority- would have been unconstitutional.
The White House Office of Legal Counsel knew and advised Obama from the outset an executive order was impossible. This aspect Obama himself admitted numerous times over the preceding two years to Latino audiences.
Subsequently the White House and DHS attempted to thread the needle with a claim of Presidential authority to “set priorities regarding enforcement“.
However, as we previously outlined the “enforcement priority” did more than “prioritize enforcement”, it actually created an entire new category of immigration personage.
Yesterday a Federal Court blocked the Obama/DHS plan, ruling that as the lawsuits filed by Texas and 25 states challenging the action proceeded – an injunction barring the application of the new “executive action” would place a hold on any change.
Judge Andrew Hanen’s decision carried an accompanying memorandum which states:
[…] the lawsuit should go forward, and that without a preliminary injunction the states will “suffer irreparable harm in this case.” “The genie would be impossible to put back into the bottle,” he wrote, adding that he agreed with the plaintiffs’ argument that legalizing the presence of millions of people is a “virtually irreversible” action. (link)
Obviously this is a huge blow to the Obama immigration agenda, and we should anticipate a significant amount of liberal media outrage and sympathy toward Obama’s grand scheme being derailed. The White House responded immediately with the following statement:
While there are numerous legal issues at stake regarding the scope of presidential authority, one of the more significant flaws in Obama’s scheme was overlooked by almost everyone at the time. A large problem relates to an intent on classifying a new category of illegal alien with eligible work status.
Riddled throughout President Obama’s Executive Order speech in November was something more than prosecutorial discretion and/or non-deportation. Extensively disbursed throughout the proposal was a claim of lawful “work/employment status“.
[…] Now here’s the thing: we expect people who live in this country to play by the rules. We expect that those who cut the line will not be unfairly rewarded. So we’re going to offer the following deal: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes – you’ll be able to apply to stay in this country temporarily, without fear of deportation. You can come out of the shadows and get right with the law.
Later in the speech Obama condescendingly referenced the way he views the work of illegal aliens:
…[…] Are we a nation that tolerates the hypocrisy of a system where workers who pick our fruit and make our beds never have a chance to get right with the law?
Because in Obama’s America – Latino’s can only be fruit pickers, yard workers and housemaids right? I digress.
Another employment reference follows moments later:
…[…] Over the past few years, I have seen the determination of immigrant fathers who worked two or three jobs, without taking a dime from the government, and at risk at any moment of losing it all, just to build a better life for their kids.
Well, you get the picture… the speech was filled with employment references.
Now, here’s the aspect worth thinking about which directly relates to the injunction delivered by Judge Hanen.
If all Obama is doing is “not deporting” people, ergo he’s using his executive authority of prosecutorial discretion, and that’s the claim of those who say this is constitutional; well, how or what part of ‘non-deportation’ includes granting “work/employment authorization”?
Work and Employment eligibility, and the qualifications for allowable status of permission therein, is federal law.
If Obama is claiming he can provide legal work authorization, though an executive action, he is absolutely creating a new law. Such a decree clearly violates the separation of powers within the constitution.
If not deporting illegal aliens is constitutionally allowable under the auspices of executive branch prosecutorial discretion, you might win the argument.
However, if President Obama thinks he can arbitrarily grant a new status of legal employment eligibility, he’s grossly mistaken. That would be making new employment law from the executive branch.
This, in my opinion is where he went too far. To put that construct in the executive action, and giving such an instruction to DHS head Jeh Johnson, any court challenge raised in that regard he would most certainly lose.
A reminder of the previous White House outline proposal.