# Is President Obama's proposed executive action on illegal immigrants an abuse of power? **URL:** \ **Category:** Great Debates\ **Created:** [November 20, 2014, 1:29pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155 "2014-11-20T13:29:26Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 5, 2014, 5:07am UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/201 "2014-12-05T05:07:35Z")
> [@D\_Anconia](#): > > In addition, he authored the leading textbook on Professional Ethics, and one of the most widely used textbooks on ConLaw. He also wrote a seven volume treatise on constitutional law that has been cited in court rulings all over the country, including at the SCOTUS. > > What are your credentials, in comparison? > > As for your comment about the footnote, are you talking about footnote #37? If so, the Professor clearly states that the case had to with standing, not with an agency’s (lack of) power to ignore the law. “One of the most widely used textbooks on ConLaw”? Even his own school doesn’t make that claim. Con Law textbooks begin and end with Chemerinsky. Nor does it make any claims about his treatises. That is beside the point, however. My point is not that Rotunda is not qualified. My point is that you can’t just point to things he said because they don’t stand up to even casual scrutiny. My own qualifications, incidentally, are irrelevant because I am not citing myself. Since you asked, I’m a (new) lawyer who practices administrative law. Footnote 37 - and yes, that’s the one I meant - is an excellent example. The problem there is that the footnote is supposed to _support_ his assertion - that prosecutorial discretion exists only in the criminal sphere. It doesn’t; in fact, on its face the dicta cited stands for the opposite proposition. Rotunda then argues that it doesn’t matter what the dicta says because what it means is something different. Conspicuously absent from the footnote is a citation that actually _does_ offer support. If that’s a little dense, I’ll put it another way: Rotunda says X. He then cites a case in which the Supreme Court said the opposite of X, and explains\* why that particular holding is not actually on point, and therefore irrelevant. The reader is presumably supposed to infer that X is true because the Supreme Court didn’t say it was not true (at least in that one case.) While I hesitate to accuse him of fabrication, it appears to be a conjuring trick.\*\* There is absolutely zero chance that Rotunda genuinely believes that there is no such thing as prosecutorial discretion outside the field of criminal law. It’s laughable. It’s as demonstrably false as if I claimed the Fifth Amendment only applied in the District of Columbia. Try this: call any agency in your state, ask for a lawyer in their enforcement division, and ask if the agency exercises prosecutorial discretion. \*You are apparently happy to take his word for it when he says the case he is citing (_Heckler_) is not on point (though that brings up the thorny question of why he cited it in the first place.) In fact, _Heckler_ is directly on point, because it isn’t a standing case at all. It is [almost entirely](https://supreme.justia.com/cases/federal/us/470/821/case.html) about the FDA’s prosecutorial discretion - as the very next paragraph in the case makes clear. > [@](#): > > The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities. These factors are the _raison d’etre_ of prosecutorial discretion in any context. Read _Heckler_ for yourself and then decide if it says what Rotunda claims it does. \*\*A more thorough reading of his testimony in its entirety suggests that his elder years may have caught up with him. He mentions a conservative boogeyman that even the most overwrought of Fox News guests doesn’t actually take seriously: > [@](#): > > If a 15-year old can cross our borders without papers, an al Qaeda operative can do the same. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 5, 2014, 5:13am UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/202 "2014-12-05T05:13:02Z")
> [@Fotheringay-Phipps](#): > > 😕 > > We’re discussing the use of prosecutorial discretion as a legal fiction when making policy changes. Your cite appears to be about an agency reinterpreting the NSR regulations, which has nothing at all to do with this issue. Obama’s challenged executive action is a directive to the DHS - and more specifically, USCIS - to rewrite its regulations a certain way. He is telling them to rewrite them to direct USCIS’ enforcement personnel not to institute deportation proceedings against certain discrete groups. That is exactly what Bush told the EPA to do. The only difference is the agencies involved (both of which exercise quasi-judicial functions.) So it has rather a lot to do with this issue. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [December 5, 2014, 5:23am UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/203 "2014-12-05T05:23:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > “One of the most widely used textbooks on ConLaw”? Even his own school doesn’t make that claim. Con Law textbooks begin and end with Chemerinsky. Nor does it make any claims about his treatises. That is beside the point, however. My point is not that Rotunda is not qualified. > [@CV](#): > > He has co-authored the most widely used course book on legal ethics, Problems and Materials on Professional Responsibility (Foundation Press, 11th ed. 2011) and is the author of a leading course book on constitutional law, Modern Constitutional Law (West Publishing Co., 10th ed. 2012). > [@CV](#): > > Rotunda is also the co-author of the 7-volume Treatise on Constitutional Law (West Publishing Co., 5th ed. 2012), and a one volume Treatise on Constitutional Law (West Publishing Co., 8th ed. 2009). He has written several other books and more than 350 articles in various law reviews, journals, newspapers, and books in this country and in Europe. His works have been translated into French, German, Romanian, Czech, Russian, Japanese, and Korean. These books and articles have been cited more than 1,000 times by state and federal courts at every level, from trial courts to the U.S. Supreme Court. You were saying? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 5, 2014, 5:27am UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/204 "2014-12-05T05:27:38Z")
It says “leading course book”. Nothing about “one of the most widely used” books. I missed the line about the treatise, yes. Would you like to address the important parts of my post now? ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [December 5, 2014, 5:32am UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/205 "2014-12-05T05:32:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It says “leading course book”. Nothing about “one of the most widely used” books. I missed the line about the treatise, yes. > > Would you like to address the important parts of my post now? What is the difference between “leading” and “widely used”? ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [December 5, 2014, 2:15pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/206 "2014-12-05T14:15:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Obama’s challenged executive action is a directive to the DHS - and more specifically, USCIS - to rewrite its regulations a certain way. He is telling them to rewrite them to direct USCIS’ enforcement personnel not to institute deportation proceedings against certain discrete groups. That is exactly what Bush told the EPA to do. The only difference is the agencies involved (both of which exercise quasi-judicial functions.) So it has rather a lot to do with this issue. It has zero to do with this issue. These are separate areas of executive branch authority. One is about areas of laws that are unspecified or ambiguous, and these are left for regulatory agencies to interpret. A change in the interpretation can have a big impact, and this is what appears to have happened in the case of Bush and the environmental rules. This has nothing to do with prosecutorial discretion, but rather is about the agencies having interpretive authority. The other is about areas of the law that are not unspecified or ambiguous in the law itself. Nonetheless the executive has some discretion because, as you noted earlier, “_the government’s resources are finite and […] it cannot pursue every possible case_”. This is what we’re discussing here, as you yourself acknowledged earlier, and my specific question is whether prosecutorial discretion can be used as a legal fiction when it’s openly acknowledged by all parties that it’s really a change in policy. [I would have to believe you’re familiar with the distinction here, and am a bit puzzled by your making this specious comparison.] ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 5, 2014, 2:16pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/207 "2014-12-05T14:16:11Z")
> [@Fotheringay-Phipps](#): > > It has zero to do with this issue. These are separate areas of executive branch authority. > > One is about areas of laws that are unspecified or ambiguous, and these are left for regulatory agencies to interpret. A change in the interpretation can have a big impact, and this is what appears to have happened in the case of Bush and the environmental rules. This has nothing to do with prosecutorial discretion, but rather is about the agencies having interpretive authority. > > The other is about areas of the law that are not unspecified or ambiguous in the law itself. Nonetheless the executive has some discretion because, as you noted earlier, “_the government’s resources are finite and […] it cannot pursue every possible case_”. This is what we’re discussing here, as you yourself acknowledged earlier, and my specific question is whether prosecutorial discretion can be used as a legal fiction when it’s openly acknowledged by all parties that it’s really a change in policy. > > [I would have to believe you’re familiar with the distinction here, and am a bit puzzled by your making this specious comparison.] The Bush thing was _not_ a change in interpretation. It was a policy decision to cease prosecution of cases brought under an existing interpretation. And nobody is discussing whether “prosecutorial discretion can be used as a legal fiction.” We are discussing whether prosecutorial discretion can _be_ a matter of policy, and the answer is yes. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [December 5, 2014, 2:30pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/208 "2014-12-05T14:30:26Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The Bush thing was _not_ a change in interpretation. It was a policy decision to cease prosecution of cases brought under an existing interpretation. You need a source for that claim. [Your own link](http://www.historycommons.org/context.jsp?item=the_bush_administration_s_environmental_record_1055#the_bush_administration_s_environmental_record_1055) says the opposite. > [@](#): > > Environmental Protection Agency (EPA) officials announce during an internal meeting of EPA enforcement officials in Seattle and during a conference call the following day that current cases involving violations of the Clean Air Act will be **judged according to the agency’s new interpretation** of the New Source Review (see August 27, 2003) —to go into effect in December (see December 2003) —instead of the old, more stringent rules that were in use at the time the violations occurred. [Los Angeles Times, 11/6/2003; New York Times, 11/6/2003; US Congress, 2/6/2004] > [@](#): > > And nobody is discussing whether “prosecutorial discretion can be used as a legal fiction.” We are discussing whether prosecutorial discretion can _be_ a matter of policy, and the answer is yes. Some people are discussing this. Me, and apparently you as well. In post #192, I wrote: “_But to this legal layman, it’s an interesting question as to whether the concept of “prosecutorial discretion” can be used as a legal fiction in cases that very clearly have nothing to with prosecutorial discretion_.” In post #193 you responded: “_It’s not an interesting question to lawyers; it’s a matter of settled law_ …” And here we are now. In sum, I raised the question of whether prosecutorial discretion can be used as a legal fiction in cases that very clearly have nothing to with prosecutorial discretion, you claimed that this is settled law, but have been unable to provide a single relevant cite. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 5, 2014, 3:10pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/209 "2014-12-05T15:10:15Z")
> [@Fotheringay-Phipps](#): > > In sum, I raised the question of whether prosecutorial discretion can be used as a legal fiction in cases that very clearly have nothing to with prosecutorial discretion, you claimed that this is settled law, but have been unable to provide a single relevant cite. You never asked for one. > [@](#): > > According to the article that Defendant presented to the court, the different charging and plea-bargaining policies that were used in California’s different federal districts resulted from individual United States Attorneys’ attempts to address the varying illegal immigration problems in their districts. The United States Attorney for the Central District prosecuted only those § 1326 violators with the worst criminal histories and then sought lengthy prison sentences for those convicted. The rationale behind that approach was that the best use of resources, in terms of deterrence and the protection of society, is [972] achieved by incapacitating for long periods of time those aliens who pose the greatest threat of committing future harm. > > _United States v. Banuelos-Rodriguez_, 215 F.3d 969, 971-72 (9th Cir. 2000). > [@](#): > > On July 2, 1980, pursuant to his authority under § 3 of the Military Selective Service Act, 62 Stat. 605, as amended, 50 U. S. C. App. § 453, the President issued Presidential Proclamation No. 4771, 3 CFR 82 (1981). This Proclamation directed male citizens and certain male residents born during 1960 to register with the Selective Service System during the week of July 21, 1980. Petitioner fell within that class but did not register. Instead, he wrote several letters to Government officials, including the President, stating that he had not registered and did not intend to do so. > … > > For reasons we discuss, infra, at 612-613, Selective Service adopted a policy of passive enforcement under which it would investigate and prosecute only the cases of nonregistration contained in this file. In furtherance of this policy, Selective Service sent a letter on June 17, 1981, to each reported violator who had not registered and for whom it had an address. [602] The letter explained the duty to register, stated that Selective Service had information that the person was required to register but had not done so, requested that he either comply with the law by filling out an enclosed registration card or explain why he was not subject to registration, and warned that a violation could result in criminal prosecution and specified penalties. Petitioner received a copy of this letter but did not respond. > … > In our criminal justice system, the Government retains "broad discretion " as to whom to prosecute. United States v. Goodwin, 457 U.S. 368, 380, n. 11 (1982); accord, Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980). “[So] long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that [608] make the courts properly hesitant to examine the decision whether to prosecute. > > _Wayte v. United States_, 470 U.S. 598, 631, 105 S.Ct. 1524, 1543 (1985). > [@](#): > > We do not go beyond these examples to decide hypothetical issues not now before us, but the foregoing should serve to indicate the analysis. None of this means that the choice of charging procedure is not within the discretion of the district attorneys throughout the state. The law presently [377] gives them the discretion to proceed by information and preliminary hearing or by grand jury indictment. Article I, section 20, requires only that the choice be made by permissible criteria and consistently applied, so as to afford preliminary hearings to similarly situated defendants “upon the same terms.” Discretion to choose a policy is not incompatible with consistency in practice. As one major study of prosecutorial discretion put it: > “That there should be consistent and evenhanded treatment of individuals within the framework of our legal system is such a commonly accepted notion that it hardly merits discussion and analysis. . . .” > “In its most elementary form, consistent and even handed treatment means that individuals in like circumstances will be treated alike. . . .” > Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L Rev 1, 4 (1971). The challenge for the prosecutor, Professor Abrams continues, “is to articulate the factors taken into account by him, sometimes intuitively, in exercising his discretion.” Id. 9Link to the text of the note Or, as Justice Tanzer wrote in another connection while on the Court of Appeals: “We recognize the wide discretion vested in the commission . . ., but that discretion is not unbridled. It is discretion to make policies for even application, not discretion to treat each case on an ad hoc basis.” Sun Ray Dairy v. OLCC, 16 Or App 63, 72, 517 P2d 289 (1973). 10Link to the text of the note This led the court in that context to require the promulgation of written standards by rules. > [378] When discretion in the prosecution process is reflected in internal rules or guidelines, this of course serves to facilitate consistent practices. It also serves to direct possible challenges to the validity of the criteria used, which are likely to be within the range of discretion, rather than to the standardless and haphazard, ad hoc, character of the choice in individual cases > _State v. Freeland_, 295 Ore. 367, 376-78, 667 P.2d 509, 516-17 (1983) Or you can look at the list of factors underlying the practice as discussed in _Heckler_, above, particularly: > [@](#): > > First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but… whether the particular enforcement action requested best fits the agency’s overall policies… ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [December 5, 2014, 3:26pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/210 "2014-12-05T15:26:59Z")
None of these relate to the specific issue at hand. All these are genuine prosecutorial discretion, where the prosecutor has to **First cite** : “_best use of resources, in terms of deterrence and the protection of society_” **Second cite** : “_factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan_” **Third cite** : - no connection at all, just a statement that the government needs to apply consistent standards. **Fourth cite** : “_whether the particular enforcement action requested best fits the agency’s overall policies_” Leaving aside the third cite which has no connection at all, all of these are about setting priorities, aka “prosecutorial discretion”, and give various bases on which priorities might be set. But they presume that these are actually criteria for setting priorities. Not one of these relates to the question at hand, which is a case where the non-enforcement has nothing to do with lower priorities but is an actual disagreement with the law as currently exists. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 5, 2014, 3:35pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/211 "2014-12-05T15:35:22Z")
All of those cites underscore the fact that prosecutorial discretion is frequently (in fact, nearly always) guided by policy, and not by case-by-case review. That is the practice that you are arguing against. As I already pointed out, the administration is enforcing the entire breadth of the INA. They have made a policy choice to defer prosecution for a particular class of cases. That is not “a disagreement with the law as it exists.” It is a decision to to enforce the law as it exists in certain cases. It is important to note that the POTUS has not created a blanket waiver here. Individuals with criminal convictions and certain other undesirable issues are not entitled to the protection of the new rules. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [December 5, 2014, 3:40pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/212 "2014-12-05T15:40:34Z")
> [@Really\_Not\_All\_That\_Bright](#): > > All of those cites underscore the fact that prosecutorial discretion is frequently (in fact, nearly always) guided by policy, and not by case-by-case review. That is the practice that you are arguing against. No, that’s not the practice I was arguing against. I was suggesting a distinction between 1) cases in which the discretion - while guided by policy - is genuinely about setting priorities in the face of limited resources (in which case policy can itself be a consideration in setting priorities), and 2) cases in which it’s not about setting priorities in the face of limited resources. All the other cases fall on one side of this distinction and the current case falls on the other. This seems pretty clear to me. So we may be at an impasse here. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [December 5, 2014, 3:44pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/213 "2014-12-05T15:44:35Z")
It appears that not everyone has the Nixon-esque belief of “When the President does it, that means it is not illegal”. \*Plaintiffs - STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; GOVERNOR PHIL BRYANT, State of Mississippi; GOVERNOR PAUL R. LEPAGE, State of Maine; GOVERNOR PATRICK L. MCCRORY, State of North Carolina; and GOVERNOR C.L. “BUTCH” OTTER, State of Idaho vs Defendants - - UNITED STATES OF AMERICA; - JEH JOHNSON, Secretary of the Department of Homeland Security; - R. GIL KERLIKOWSKE, Commissioner of U.S. Customs and Border Protection; - RONALD D. VITIELLO, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection; - THOMAS S. WINKOWSKI, Acting Director of U.S. Immigration and Customs Enforcement; and - LEÓN RODRÍGUEZ, Director of U.S. Citizenship and Immigration Services.\* What is actually at issue? \*The COMPLAINT - - 1. This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution. - 1. On November 20, 2014, the President of the United States announced that he would unilaterally suspend the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States. - 1. The President candidly admitted that, in so doing, he unilaterally rewrote the law: “What you’re not paying attention to is, I just took an action to change the law.” - 1. In accordance with the President’s unilateral exercise of lawmaking, his Secretary of the Department of Homeland Security (“DHS”) issued a directive that purports to legalize the presence of approximately 40% of the known undocumented-immigrant population, and affords them legal rights and benefits. - 1. That unilateral suspension of the Nation’s immigration laws is unlawful. Only this Court’s immediate intervention can protect the Plaintiffs from dramatic and irreparable injuries.\* Has this case been filed with the proper court? \*II. JURISDICTION AND VENUE - - 1. The Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action arises under the U.S. Constitution, art. II, § 3, cl. 5, and the APA, 5 U.S.C. § 706. The Court also has jurisdiction under 28 U.S.C. § 1346 because this is a civil action or claim against the United States. Finally, the Court has jurisdiction to compel an officer or employee of the above-named federal agencies to perform his or her duty under 28 U.S.C. § 1361. - 1. Venue is proper in this District under 28 U.S.C. § 1391(e) because the State of Texas is a resident of this judicial district, and a substantial part of the events or omissions giving rise to the Plaintiffs’ claims occurred in this District. - 1. This Court is authorized to award the requested declaratory and injunctive relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, the APA, 5 U.S.C. § 706, and 28 U.S.C. § 1361\*. [https://www.texasattorneygeneral.gov/files/epress/files/20141203ImmigrationExecutiveOrderLawsuit.pdf](https://www.texasattorneygeneral.gov/files/epress/files/20141203ImmigrationExecutiveOrderLawsuit.pdf) Let the games begin and may the best legal argument win. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 5, 2014, 3:48pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/214 "2014-12-05T15:48:24Z")
Yeah, good luck with that. > [@](#): > > No, that’s not the practice I was arguing against. > > I was suggesting a distinction between cases in which the discretion - while guided by policy - is genuinely about setting priorities in the face of limited resources (in which case policy can itself be a consideration in setting priorities), and cases in which it’s not. All the other cases fall on one side of this distinction and the current case falls on the other. Your premise is flawed. The INS absolutely has to prioritize and ignore certain violations. As I pointed out, Obama spends every dollar appropriated on immigration enforcement. This is a way of doing it. Some state attorneys do the same thing every day when they decide not to proceed against prostitutes or those charged with minor drug offenses or petty theft because they don’t think those crimes are a big deal. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [December 5, 2014, 3:59pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/215 "2014-12-05T15:59:20Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Yeah, good luck with that. > > Your premise is flawed. The INS absolutely has to prioritize and ignore certain violations. As I pointed out, Obama spends every dollar appropriated on immigration enforcement. This is a way of doing it. But that’s not what he’s doing. He’s not saying “I’m letting these people to stay because we don’t have enough money to deport them”. He’s saying “I’m letting these people stay **because I believe they should be allowed to stay** ”. It’s fundamentally different, and is why he’s using “prosecutorial discretion” as a legal fiction, in contrast to all the other cases you’ve cited. (Whether this distinction has a legal impact is something I don’t know. But it’s a distinction.) ---
**Author:** ![crucible](https://avatars.discourse-cdn.com/v4/letter/c/5f8ce5/32.png) [@crucible](https://boards.straightdope.com/u/crucible)\ **Post date:** [December 5, 2014, 4:14pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/216 "2014-12-05T16:14:27Z")
It will be a great case to follow, but people who live in the real world can see there is a real problem with both immigration enforcement and in dealing with the results of our inability to catch every last illegal and deport them immediately. These people are here, and, from what I read, are not, on balance, drawing more from our generosity than they are contributing. Of course it is up to congress to pass laws that deal with the problems and establish ways to provide a way for us to use guest workers without them bringing along their families. But…congress has been unable, for as long as I can remember, to pass any new legislation on this matter. Obama has taken a course that defines the difference between conservatives and liberals… Conservatives want laws enforced unexceptionally (unless it applies to their conservative business owner users of alien labor?) and Liberals want problems to be solved in ways fair to all concerned – and that includes some degree of enforcement, of course, along with some degree of sensible attempt to clean up the mess that the current laws and enforcement have created. so, if Obama were a conservative president, he would have…done nothing, said that if congress refuses to act, he can’t do anything about it, and…not taken any action or issued any instructions to the departments under his hand…just let it things get worse and worse. But, as a liberal (questionable, of course) president, he decided that trying to fix the problem while pleading for congress to do their job was the right thing to do. Crisis management. Congress has always, and has, increasingly, accepted the need to let the president act promptly and decisively when a crisis was in our laps – attacks on US citizens all over the world, met with executive decisions how to try to deal with it – natural disasters, sending billions of dollars worth of support to one place or another, directing soldiers and other government people to respond to the disaster in a fast, effective way… – financial crisis management – using the Fed and other agencies to prop up the economy, the banks, the auto industry, etc… taking decisive and prompt action… Congress does respect the fact that if they are unable to take action, whether because things are happening so quickly, or they are unable to act for whatever reason…that the executive has to deal with things as best he can. Congress is deadlocked, as much within the parties as between them. No one wants to send legislation to the other house when they know if will not pass there; political polarization has taken us so far up the road to stalemate without compromise that only by the president effectively doing the work of Congress, then letting the Courts decide if it was appropriate or not, can crises be dealt with. If the next president is a Republican, I have no doubt they will be presented with challenges of a similar nature during their term or terms. Some matter will come up – perhaps a treaty with Iran, for example, where congress cannot reach an agreement, there being too many opinions and too little agreement between them. Some members of the president’s opposition will, as we have seen with Obama is massive detail, refuse to pass anything the president has endorsed with no reason other than it might give the president a ‘victory’. WGACA. ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [December 5, 2014, 8:23pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/217 "2014-12-05T20:23:15Z")
> [@Fotheringay-Phipps](#): > > But that’s not what he’s doing. > > He’s not saying “I’m letting these people to stay because we don’t have enough money to deport them”. He’s saying “I’m letting these people stay **because I believe they should be allowed to stay** ”. > > It’s fundamentally different, and is why he’s using “prosecutorial discretion” as a legal fiction, in contrast to all the other cases you’ve cited. (Whether this distinction has a legal impact is something I don’t know. But it’s a distinction.) I disagree. I believe he is saying “it’s clear that there is no way we can remove everyone who is here without legal status, even if we wanted to. Given that fact, let’s set some consistent priorities about what kinds of people deserve the brunt of our enforcement efforts.” On a related note, a [recent study](http://jmhs.cmsny.org/index.php/jmhs/article/view/37) suggests that a significant percentage of people who are covered by the recently announced programs already have, or would have if they had access to competent legal assistance, various other routes to lawful immigration status. Some are even derivative U.S. citizens and may not even realize it. ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [December 5, 2014, 8:39pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/218 "2014-12-05T20:39:48Z")
Let me give you an example of a current client of mine who may or may not be an enforcement priority under the recently announced program(s). She entered the U.S. illegally more than 10 years ago from a train wreck of a country. Her ex-husband was kidnapped and never heard from again. She has supported herself with work and the help of her family members (who are here in legal status) here for all this time, and would never have ended up in removal proceedings except that a car in which she was a passenger took a wrong turn and ended up at the Canadian border with no way to turn back. She could have put together a weak asylum case, but acknowledged that she didn’t believe that she would have been targeted for persecution if she went back to her native country. Meanwhile, her now-adult daughter met and married a U.S. citizen in their home country and immigrated based on that marriage. The daughter is now a permanent resident and will be eligible to apply for citizenship and, once she is a citizen, petition for her mother less than a year from now. OTOH her mother requested prosecutorial discretion, which was denied. She was ordered removed, and appealed, and the appeal was just denied a couple of weeks ago. Which means that she now has a final removal order unless she appeals to federal circuit court (we think – what a “final order of removal” means isn’t entirely clear yet for this purpose). So should a lady like this be an enforcement priority? Or should ICE worry more about, say, people with felony convictions, or people who have committed immigration fraud, of which there is unfortunately no lack? ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [December 5, 2014, 11:38pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/219 "2014-12-05T23:38:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > My point is not that Rotunda is not qualified. My point is that you can’t just point to things he said because they don’t stand up to even casual scrutiny. My own qualifications, incidentally, are irrelevant because I am not citing myself. Since you asked, I’m a (new) lawyer who practices administrative law. Ok, so you admit that Professor Rotunda is qualified. Why should we believe an anonymous, newly-minted lawyer, on the internet over an established Constitutional scholar? I’ll leave that for the readers to decide. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [December 5, 2014, 11:54pm UTC](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155/220 "2014-12-05T23:54:31Z")
> [@John\_Mace](#): > > That’s a good point. Just like you can go to another grocery store, those people can take their business to another government. Who can go to another grocery store? The people who already paid the higher price for a turkey? What good would that do them? [Previous page](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155.md?page=10) [Next page](https://boards.straightdope.com/t/is-president-obamas-proposed-executive-action-on-illegal-immigrants-an-abuse-of-power/705155.md?page=12)