Legal Action Grows against Obama Edict

Many commentators speculate on what actions Congress may take to rein in President Obama’s unilateral amnesty edict, a move which clearly challenges the constitutional authority of Congress to make laws. The judicial branch probably will have a say as well.

As of this writing, 24 states have signed on to a legal challenge against the edict. The states are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, North Carolina, South Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Texas, Utah, West Virginia and Wisconsin.

Leading this coalition of states is the incoming governor of Texas, Greg Abbott. He affirms that “The President’s proposed executive decree violates the U.S. Constitution and federal law, circumvents the will of the American people and is an affront to the families and individuals who follow our laws to legally immigrate to the United States.”

As part of its legal challenge, the coalition seeks a preliminary injunction to stop the edict from going into effect. It may have a window of opportunity lasting six months or more because the Obama Administration now says it will be that long before it begins issuing papers to illegal aliens who apply for legal status under the edict.

One bit of good fortune for the coalition is that U.S. District Judge Andrew Hanen will hear the case. Hanen in the past has expressed strong skepticism toward Obama’s claim that the principle of prosecutorial discretion justifies measures like this decree. Under that principle, the state may set priorities for law enforcement, but Obama’s edict essentially repeals laws pertaining to broad categories of illegal aliens.

In a ruling last year dealing with this issue, Judge Hanen expressed skepticism toward Obama’s position. “This court,” said Hanen, “is not opposed to the concept of prosecutorial discretion, if that discretion is exercised with a sense of justice and common sense. Nevertheless, it is not aware of any legal principle … that not only allows the government to decline prosecution, but further allows it to complete the intended criminal mission. The [Department of Homeland Security] should enforce the laws of the United States – not break them.”

Just recently another judge weighed in on the Obama decree. In what The Washington Times described as a “scathing” opinion, Federal District Judge Arthur Schwab stated that “Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution … and is therefore unconstitutional.”

The Times observed that Judge Schwab’s ruling may not overturn Obama’s edict, because his decision involved the deportation of a single illegal alien. Nevertheless, the decision “could serve as a road map for other federal judges who are considering direct challenges to the president’s policies.”

One such action is that of Sheriff Joe Arpaio of Maricopa County, Arizona, who is seeking a preliminary injunction against the edict in federal court. For a suit of this type to be successful, the plaintiff must show “standing,” that is how he would be hurt by the action for which he seeks legal remedy. Arpaio argues that the edict will encourage more illegal immigration and thereby burden his department with increased costs, an increased workload and greater personal risk.

Under our constitutional system of checks and balances, each branch of government – executive, legislative and judicial – is supposed to act as a watchdog against usurpation of power by the others. The purpose is to safeguard our liberties from arbitrary rule. The legislative and judicial branches are now acting to check the executive overreach of Obama. Whether they succeed will say even more about the security of our freedoms than the issue of illegal immigration.