On Wednesday, December 3, 2014, the attorneys general and governors of 17 states (joined by 3 more states on December 4) filed a complaint for declaratory and injunctive relief with the United States District Court for the Southern District of Texas challenging portions of President Obama’s November 20, 2014 executive action that would shield several million illegal immigrants from deportation.

The filing of yesterday’s lawsuit does not address the business-related portions of the executive action. The suit will impact the four to five million persons who would become eligible to obtain employment authorization in the United States as a result of President Obama’s executive action. This will also indirectly affect U.S. employers since these workers may be delayed or prevented from obtaining employment authorization.

The complaint filed in Texas raises the following objections to President Obama’s executive action on immigration:

COUNT ONE—Violation of the Take Care Clause, Art. II, § 3, Cl. 5

The DHS [U.S. Department of Homeland Security] Directive violates the President’s constitutional duty to “Take Care that the Laws be faithfully executed.” The Supreme Court has made clear that the Take Care Clause is judicially enforceable against presidential invocations of the dispensing power. The Take Care Clause limits the President’s power and ensures that he will faithfully execute Congress’s laws — not rewrite them under the guise of executive “discretion.”

COUNT TWO—Violation of the APA, 5 U.S.C. § 553

The Administrative Procedures Act (APA) requires this Court to hold unlawful and set aside any agency action taken “without observance of procedure required by law.” With exceptions that are not applicable here, agency rules must go through notice-and-comment rulemaking. The Defendants promulgated and relied upon the DHS Directive without authority and without notice-and-comment rulemaking. It is therefore unlawful.

COUNT THREE—Violation of the APA, 5 U.S.C. § 706

The APA requires this Court to hold unlawful and set aside any agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” The DHS Directive purports to create legal rights for millions of undocumented immigrants. And it does so by rewriting the immigration laws and contradicting the priorities adopted by Congress. As such, the DHS Directive violates the aforementioned provisions in 5 U.S.C. § 706, and it is therefore unlawful.

The states seek the following relief:

  • A declaratory judgment and injunction that the Defendants’ [the president’s] deferred action program violates the Take Care Clause;
  • A declaratory judgment that the Defendants’ deferred action program is procedurally unlawful under the APA;
  • A declaratory judgment that the Defendants’ deferred action program is substantively unlawful under the APA; and
  • All other relief to which the Plaintiffs [the states] may show themselves to be entitled.

The federal courts will determine the limits of prosecutorial justification underlying President Obama’s executive action. Commentators in the New York Times’ op-ed pages have expressed a range of opinions on the executive action. One commentator, speaking against the executive action, stated

There’s no logical stopping point to the prosecutorial justification underlying President Obama’s immigration policies. Presidents could simply decide not to enforce entire sections of the Clean Air Act, tax code or labor laws, or exempt entire categories of people — defined unilaterally by the president — on the assertion that those laws are “unfair” and there aren’t enough resources to go around. The president would have power to grant a “privilege” or exemption from any federal law, defying the plain language those laws and the will of the people’s Congress.

Another commentator, also speaking against the executive action, stated:

But just because the president can’t deport everyone, doesn’t mean he can choose to protect millions. Executive discretion cannot be unfettered, and along the continuum from complete enforcement to non-enforcement, the presumption of unconstitutionality increases. As non-enforcement of the law leans toward thwarting Congress’s statutes, rather than merely conserving resources, prosecutorial discretion turns into an abuse of power.

In favor of the executive action, one commentator noted:

Critics of the plan the president is reported to be considering argue that the Constitution obliges him to “take care that the laws be faithfully executed,” an obligation that seems to give the lawmaker, Congress, the primary authority to set policy. They say that refusing to enforce immigration law against millions of illegal immigrants violates that constitutional duty.

Yet the Constitution also gives the president “executive power” which has always been understood to include the discretionary power to allocate resources among enforcement efforts…The only difference between the president and his predecessors is that the president has openly declared the de facto policy of his predecessors. We might disagree about whether this move is wise, but it’s not a constitutional violation.

It is difficult to predict how the district court will rule, but it appears likely that at the very least this suit will delay or possibly prevent the implementation of the portions of the President’s executive action that pertain to deferred action for several million illegal immigrants.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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