Following a resounding victory for Republicans during Tuesday’s midterm elections, President Obama announced he will forge ahead with his plan to act unilaterally on immigration.
As promised, his executive action will come “before the end of the year.” What he won’t do, he said, is “just wait.”
But House Speaker John Boehner, repeating a line from before the election, said Obama would “poison the well” by acting without the approval of Congress. Sen. Ted Cruz, for his part, warned of a “constitutional crisis” if Obama acts alone.
But how real is such a crisis?
If Congress’ record of seeking to impeach or sue Obama is any indication, the crisis is simply nonexistent.
The president has taken executive action before. In June 2012, the Obama administration created a deportation relief program for young people called Deferred Action for Childhood Arrivals (DACA). No viable legal challenges ever came from that move.
One quasi-challenge does stand out. Kris Kobach, the Kansas secretary of state, once represented a group of Immigration and Customs Enforcement officers in a suit against the program, but the case was ultimately dismissed on procedural grounds. It was never appealed.
Kobach’s lawsuit—like his work behind Arizona’s SB 1070 and other immigration laws across the United States—was especially engineered to bring down DACA on constitutional and federal law grounds, under the guise that the program somehow forced law-abiding immigration officers to violate their oath to uphold the laws of the United States.
A venerable argument, but it went nowhere in court.
This may explain why Boehner never bothered to sue Obama over DACA. Like his beleaguered lawsuit challenging the Obama administration over the implementation of the Affordable Care Act—which he hasn’t even filed—a separate DACA lawsuit probably would’ve failed big time in court.
It would’ve failed because courts do not like to entertain political questions. Political questions are those involving the elected branches—Congress and the president. And DACA, a program involving Obama’s broad discretion in enforcing immigration laws, has everything to do with Obama’s powers as the nation's top executive. But DACA is also related to Congress’ powers to pass immigration laws.
So who’s right and who’s wrong? That’s a dispute a federal judge would likely never settle, because a judge’s only task is to say what the law is—not to referee a power dispute between co-equal branches of government. That’s how separation of powers works.
And that’s precisely why Obama’s plan to use executive action on immigration—within the parameters of existing immigration law—poses no constitutional problems. So long as he acts in a manner consistent with his prosecutorial discretion to enforce or not enforce the laws, the courts won’t get involved.
Could the president unilaterally grant deportation relief to all undocumented immigrants and start issuing green cards? No, that would overstep his executive authority. But he's empowered to use the country's resources in the best way possible, which includes allowing people who aren't a threat to stay in the country.
Cristian A. Farias is a journalist and lawyer based in New York.