New York Times
By Julia Preston
December 8, 2014
A
group of 20 states that filed a federal lawsuit this week against
President Obama’s executive action on immigration could face difficult
legal and factual hurdles, legal experts said, because
federal courts have been skeptical of similar claims in the past.
Several
lawyers said the states could have a hard time convincing the federal
courts that they could suffer specific harms as a result of Mr. Obama’s
actions. Those harms are the legal foundation
for them to bring the suit.
“The
injury the states are alleging seems a bit speculative,” said Cristina
Rodriguez, a professor of immigration and constitutional law at Yale Law
School. “In many ways this is a political
document,” she said of the suit, adding, “It feels more rhetorical than
legal.”
Others
counter that the suit is sound. Jay Sekulow, chief counsel of the
American Center for Law and Justice who has argued several cases
involving conservative causes before the Supreme Court,
said that Mr. Obama had gone far beyond the bounds of executive
discretion and that the lawsuit would demonstrate that. “The scope and
breadth of what the president has done is so impressive that it changes
the dynamic dramatically,” he said.
The
complaint was filed on Wednesday in federal court in Brownsville, Tex.,
by Texas and 16 other states, with Arizona, Florida and Ohio joining on
Thursday. The states charged that the president
had overstepped his authority and failed in his constitutional duty to
faithfully enforce the laws.
In
actions Mr. Obama announced on Nov. 20, he offered three-year
deportation reprieves and work permits to as many as five million
illegal immigrants. The president said he was using well-established
discretionary powers to set immigration enforcement priorities.
The
lawsuit contends that a smaller program Mr. Obama started in 2012,
which gave deportation protections to young immigrants who came here as
children, had unleashed a surge of illegal crossings
of unaccompanied minors across the nation’s Southwest border last
summer, imposing spiraling costs on Texas and other states.
Legal
papers filed on Thursday by the attorney general of Texas, Greg Abbott,
asked the court to order an emergency halt to the president’s actions,
saying the new programs “will set off another
humanitarian crisis” at the border. The states argued it would be
“virtually impossible to unscramble the egg” once the administration
starts taking applications from immigrants for the deportation
deferrals.
In
a conference call on Friday, the attorneys general from two states
named on the plaintiffs’ list distanced themselves to some degree from
the lawsuit and sought to turn the pressure on
Congress to pass a more permanent immigration overhaul. Greg Zoeller of
Indiana, a Republican, and Jim Hood of Mississippi, a Democrat,
released a bipartisan letter they signed with 16 other state attorneys
general calling on Congress to act.
Mr.
Zoeller said he agreed with Gov. Mike Pence, also Republican, “on the
very serious constitutional questions that the president’s action
raises.” But he advised the governor to seek an
outside lawyer to represent Indiana in the immigration lawsuit because
it would be “somewhat distracting” for Mr. Zoeller when he was working
to convince lawmakers in Washington “to come together and do the hard
work of legislation.”
Mr.
Hood said Gov. Phil Bryant, a Republican, had joined the lawsuit but
that the State of Mississippi had not. Mr. Hood said that after Mr.
Bryant joined a similar lawsuit several years ago,
he had been dismissed from the case by the judge.
The
new lawsuit, Mr. Hood said, “was governor-driven litigation which
involves policy and drags us into litigation we might not initiate on
our own.”
Walter
Dellinger, a constitutional lawyer, noted that the lawsuit did not
refer to the main statutes the president had evoked as the legal basis
for his actions or offer a rebuttal to a lengthy
finding by the Justice Department’s Office of Legal Counsel. The states
“make a political argument that is legally beside the point,” said Mr.
Dellinger, a lawyer at the O’Melveny & Myers law firm, who has
expressed his view that the president’s initiatives
are constitutional.
Lawyers
representing unaccompanied minors who crossed the border this summer
said Texas could find it difficult to prove claims that the minors were
attracted by the president’s programs.
Jonathan Ryan, executive director of Raices, which means roots in
Spanish, an immigration legal services group in San Antonio, said he and
his staff had interviewed at least 2,200 youths.
“Almost
to a child, no one came over anticipating any kind of benefit nor did
they name DACA in particular,” said Mr. Ryan said, referring to the name
of Mr. Obama’s program, Deferred Action for Childhood Arrivals, from 2012.
At
the National Immigrant Justice Center in Chicago, lawyers interviewed
3,956 migrant children this year. Lisa Koop, associate director of legal
services there, said the number of children
who had heard of the 2012 program was “in the single digits.”
“It
is clear that DACA was not a driving force behind the migration,” Ms.
Koop said. “What we heard time and again was that violence in Central
America and the need for safe haven was what
prompted these children to undertake the journey north.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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