States Fight Obama’s Claim Immigration Order Is Unreviewable

By Laurel Brubaker Calkins

(Bloomberg) – Twenty-five states’ top lawyers blasted the federal government’s claim that President Barack Obama’s executive order letting more than 4 million undocumented immigrants stay in the U.S. is above judicial review.

The states are trying to block the order from taking effect until their challenge to overturn the policy plays out in federal court in Brownsville, Texas. Immigration officials will soon begin processing applications to let certain undocumented workers avoid deportation and apply for work permits and some federal benefits, such as Social Security and Medicare.

The administration claims the policy is “challengeable by no plaintiff, reviewable by no court, and subject to no public input,” lawyers for the states said in an 88-page filing. The last U.S. president to take this stance was Harry Truman, and the Supreme Court blocked executive orders he issued during a steelworkers’ labor dispute in 1952, the states said.

“This court should respond likewise,” the states said. “Only the courts can prevent the executive’s self-aggrandizement.”

The Department of Homeland Security has urged the judge to dismiss the case, saying the executive branch has broad authority to order immigration officials to “prioritize their resources” on removing criminals and illegal immigrants without family ties to the U.S.

Obama’s Nov. 20 order grants quasi-legal status to more than a third of the estimated 11 million undocumented immigrants already in the U.S. undocumented immigrants must have been in the country for more than five years or have a child who is a U.S. citizen, or have been brought here themselves as children, to qualify under the new policy. They must also pass a criminal background check.

The states claim they have the legal right to challenge the executive order because they have to spend “hundreds of millions of dollars on health, education and law-enforcement programs” that will be strained by a new wave of immigrants encouraged to enter the U.S. illegally because of the new policy.

The judge has set a hearing in the matter for Jan. 15.

The case is Texas v. U.S., 1:14-254, U.S. District Court, Southern District of Texas (Brownsville).

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