House Speaker John Boehner is telling his fellow Republicans that the Leadership is working on a resolution to authorize another lawsuit against the Obama Administration, this time over the President’s executive action on immigration that was announced in November:
Speaker John Boehner is finalizing a plan to sue President Obama again, this time over the administration’s decision to grant work visas to millions of undocumented immigrants.
Boehner told his conference at a closed-door meeting Tuesday morning that he has a team exploring the best options to challenge last year’s executive action, under which the Homeland Security Department will begin granting legal working status to millions of immigrants, according to sources in the room.
“Our team has been working on litigation. We are finalizing a plan to authorize litigation on this issue—one we believe gives us the best chance of success,” he said, according to a source in the room.
The move toward a lawsuit comes as the GOP’s legislative options to target the president’s policies are waning. The House passed a bill funding DHS that contained provisions rolling back Obama’s executive action and other administrative relaxations of immigration enforcement, including deferred action for childhood arrivals, otherwise known as Dreamers. But the bill faces an uncertain future in the Senate, where the immigration-related measures are thought not to have the requisite Democratic support to exceed the 60-vote filibuster threshold.
If the bill comes back to the House with less-stringent measures targeting the White House’s immigration policy — or, indeed, none at all — it is unclear that it can pass the chamber. So challenging the president in venue other than the Capitol could assuage GOP House members who have said unequivocally that they do not want to move any other immigration measures until the president’s actions are dealt with.
It is unclear whether a congressional lawsuit would also challenge the deferred action for childhood arrivals policy, which has already put off deportation for more than a half- million undocumented immigrants. The House would have to vote on a resolution authorizing legal action, and that could come in the form of its own lawsuit, or in the form of joining an existing suit challenging Obama’s actions.
A House lawsuit, if it is indeed filed would join at least two others that have been filed in the month and a half since President Obama announced what essentially amounts to an expansion of 2012’s Deferred Action For Childhood Arrivals over the objection of Congressional Republicans, who contend that the President is acting outside the range of his authority. One suit was filed by Maricopa County, Arizona Sheriff Joe Arpaio and that suit has already been dismissed by a Federal District Court Judge and is presumably headed to the appropriate Court of Appeals. A second suit, currently pending in a Federal Court in Texas, was filed by Texas and sixteen other states. Additionally, the House has already filed suit against the President on matters related to the implementation to the Affordable Care Act. Both of those cases are in the early stages of litigation, and it is likely to be some time before there are final rulings in any of them for quite some time. In the meantime, the deportation relief that the President announced is set to start going into effect in the coming months.
Of course, a House lawsuit against the Administration over immigration would face the same legal hurdles that the Obamacare lawsuit does, namely the question of whether the House of Representatives even has standing to sue the President over a policy decision such as this. As I noted when the House lawsuit was first being discussed, it is exceedingly likely that Federal Courts will find that the House of Representatives as an institution lacks standing to sue the President over a policy decision. In that case, we were talking mainly about the President’s decision, as expressed through the Department of Health and Human Services, to extend the amount of time that employers had to comply with the PPACA’s coverage mandate. In this case, the issue concerns the exercise of executive discretion in the implementation of deportation relief for certain classes of immigrants under the nation’s immigration laws. In both cases, of course, Congress contends that the President lacks authority to take the executive action in question, but before the Federal Courts get to that issue they will likely be asked to decide if the case is even properly before them to begin with. Based on the current state of law on standing Federal Courts, which I discussed at length in this post, the argument that Congress as a whole has any more standing than an individual Member of Congress does, and the Courts have consistently held that they have no standing at all. In any case, as I’ve noted before, it will take at least a year or two for the standing issue to make its way through the Federal Courts before it is finally resolved in any case, and it would take at least as long after that for the ultimate issues in the case to be resolved assuming that the Courts found that Congress did have standing.
What all this demonstrates, of course, is that Republicans are quickly discovering that they have very few options when it comes to challenging the Presidents executive action on immigration. The idea of holding the budget of the Department of Homeland Security hostage until the President relents seems to be falling apart in the face of the reality that any legislation that would “defund” those parts of the department that would implement the policy will not make it past a Senate filibuster, and would be vetoed by the President if it did, Additionally, the recent uptick in terrorist activity in Europe makes it exceedingly unlikely that the GOP is going to be able to get away with holding off on funding for DHS for very much longer in any case. Much like the Obamacare lawsuit, then, this proposed lawsuit is essentially the House Leadership’s efforts to placate the base of the GOP. The lawsuit itself is unlikely to succeed, but that’s not really why Speaker Boehner is talking about filing it in any case.
