Constitutionality of Executive Action on Immigration Reform

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There is a debate on whether President Obama has the right to order executive action on immigration. Arizona State University law professor Paul Bender will sort through the legal issues of the president’s action.

Ted Simons: Good evening and welcome to "Arizona Horizon." I'm Ted Simons.

Ted Simons: There's been a lot of discussion as to whether or not President Obama violated the constitution by issuing an executive order delaying deportation for millions of people in the country illegally. Here to help us sort through the debate is ASU law professor Paul Bender. Good to see you again.

Paul Bender: Nice to see you, too.

Ted Simons: So was the president's action constitutional?

Paul Bender: The most important thing I think to say about that is that anybody who tells you that it clearly was constitutional, no question about it, where it clearly was unconstitutional, no question about it, is not telling you the truth because it's unclear. And the reason it's unclear is because the constitution, the relevant constitutional language is the President shall take care that the laws be faithfully executed. Faithful execution does not mean you prosecutor everybody, for exampling who commits a certian crime. There's prosecutorial discretion. The only case there is about that is a case back when Truman was President and the court had to decide whether he could do that. The court said he couldn't because Congress had just said, don't seize the steel mills. And the prevailing opinion in that case, that everybody thinks states the law, in fact, chief justice Roberts and all the other justices recently have been confirmed in their confirmation hearing when asked about the separation of powers, said the, let me read what you he said. He said "Therefore Congressional inertia in difference may sometimes enable, if not invite, measures on independent presidential responsibility." He divides the world into three things. If Congress says to the president, do it, the President has maximum power. If Congress said don't do it, then the President has minimal power. But there's a vast twilight area where Congress does not act. So that's the twilight area. So, to me, the president's arguments are stronger than the arguments the other way because he's not making law. He is prioritizing the enforcement of the law. And think of it this way. These people who he's put in this category, we will talk about that in a second -- have been here for years. At least five years, illegally. Right? Has anybody thought that was unconstitutional? To exercise his prosecutorial discretion to say I have more important things, more important people to deport? So what he's done is try to regularize what is discretion is and to make it clear, hey, I am not going to go against you people. And he's done more than that. He's said, hey, you got to come forward and register, and we do a background check on you and it's only for three years, and we make you pay fees. So he wants to bring them off the shadows into the world.

Ted Simons: You mentioned prosecutorial priorities and these sorts. What are the limits on the President's prosecutorial enforcement priorities?

Paul Bender: Nobody knows for sure. I would think that the President has to have reasonable priorities. When he has, in this case, he's got 11 million people who are deportable. Nobody thinks he can deport all those people in the relatively near future. Deportation is not something you do like that. There has to be a hearing. There are all kinds of exceptions to it. People can claim immunity from deportation for all kinds of reasons. You have to have a hearing in every case. You would have to have hearings for all of them. You can't do that. He's got to have priorities and he's announced what my priorities are. He says my lowest priorities are people with children who are lawful residents who haven't committed any crimes and are willing to come forward and say that and want to work. And it seems to me that's -- the question is that a reasonable priority for him to have and it seems to me he is.

Ted Simons: Are his actions consistent with Congressional -- you mentioned Congress can either do nothing, do something or the vast twilight in between. Are his actions consistent with any of the three?

Paul Bender: I think it's in the twilight area because we've had this situation with all of these people building up over the years, 11 million now, who are here illegally and Congress hasn't done anything to say what to do with that. It's a serious enforcement problem. You have 11 million people who are deportable. What do you do? You can't deport them all. If Congress were to lay out enforcement priorities, the President would have to follow those. But Congress has not. And what Justice Jackson is saying here is, hey, what Congress is faced with a problem like that and from inaction or inertia or whatever they don't act, then the President has the responsibility to do reasonable things. To me the question here is, are these reasonable priorities that he's set out? And I think there's a strong argument that they are.

Ted Simons: If Congress, and now we have a Republican Congress, if this Republican Congress decides to do something, pass a law that goes against these presidential actions, executive actions, what happens?

Paul Bender: If Congress were to face this question and enact legislation saying, hey, here are the priorities you ought to have, I think he probably would have to follow those. Unless those were really unreasonable. So he has to follow the law. If they face the question, and state what the law is, but they haven't faced that question. He's faced with a really important and difficult enforcement problem. He's got 11 million people. He can't deport them all right away. He's got to decide who to deport and not to deport and that's what he's doing.

Ted Simons: Senator McCain calls it an illegal power grab. He's not able to unilaterally change the power. Senator Gosar wants the house to sue the President for violating the constitution. Representative salmon is disregarding the constitution and changing laws through executive order. Do they have a point?

Paul Bender: No about changing the law. He has not changed the law. The law remains exactly the way it is. What he's done is say how he is going to enforce the law. The law remains the way it is. So to say he's changing the law is wrong. If the President said, I am going to raise the income tax rate, or I am going to deport people who the law does not say should be deported; I am going to make a new crime that would be making law. But he hasn't done that. This is enforcement of the law and one of the things he's Espies are supposed to do is take care the law be faithfully executed. The question is, is he faithfully executing the law when he makes this order of priorities? So to say he is making law, that's just wrong. What he's doing is doing his job. The question is, is he doing it in a faithful way?

Ted Simons: If it does come down to a case who would have standing in a situation like this?

Paul Bender: We should talk about that because I think the answer is probably nobody. Congress normally does not have standing to challenge the President's indication of the laws it passes. The people who have standing -- nor does an ordinary citizen. It's, if the President does something I think is unconstitutional, I don't have power to go into court. It's got to normally be somebody who is directly affected in a negative way by what the President does. So when the President says, I'm not going to enforce the law against a group of people, it's hard to see who would have standing. Because the people who are affected by it or helped by it rather than hurt by it. I don't think Congress has standing. I would be surprised if the court said that because court has been very Leary. If the court would say the Congress has standing to challenge the president, they are setting themselves up to have an awful lot of contentious cases in an area that they want to stay out of. This is the kind of thing and they said this explicitly challenges between the Congress and President are ones that ought to be settled politically. Because each of those has a constituency, each of those has power and they can fight it out themselves and the court should only step in the most extreme circumstances. I think the courts would try to stay out of this. And I think there is press denied that would lead them to stay off it.

Ted Simons: Do you think it's likely the House would sue the President?

Paul Bender: That I can't say. I think that if they did, it's unlikely that a court would say that they had standing.

Ted Simons: Okay. So last question on this then. Everyone is acting as though this is a blatant disregard for X, Y, and Z but haven't previous presidents used executive actions?

Paul Bender: Of course. And again, remember, I want to distinguish between different kinds of executive actions. One kind of executive action is to make law, to say, OK, I am going to change the Environmental Protection Act and I am going to say, you can't do what you are doing even though the law doesn't say that. That's the President making law. And that's something that he probably can't do. This is the President enforcing a law. And nobody thinks that executives have to enforce the law 100%. They always have some discretion and this is a particularly difficult problem because we haven't enforced the law for many years. We have 11 million people violating it and there's no way you can enforce it against all of them so the President is driven to make orders of priorities. And that's what this --

Ted Simons: It's not a de facto changing of the law by saying, I am not going to concentrate on A, I will concentrate on B. Doesn't that mean A now becomes different in the sight of…

Paul Bender: Temporarily. It's one reason, one way you can item it's not law is that Congress can overrule him any time it wants.

Ted Simons: Right.

Paul Bender: And the next President can overrule him and change. So if the law is made, the new President cannot say I will ignore that law but a new President could say, I have a different order of priorities. And as we said before, Congress could say, no, that's not your highest priority. We want your highest priority to be something else. I don't think Congress would say that. Who is going to say that the highest priority to deport are people who have children, who are citizens, or lawful residents and who lived I believe this country for five years or more, and who have not committed any crimes, and are willing to come forward and say that and register and go through a background check. That's who this is about. To say that that is an unreasonable priority strikes me as strange.

Ted Simons: Well, it's, whether it's straining or not it could happen. But that again would be your political solution as opposed to judicial action.

Paul Bender: Exactly.

Ted Simons: Interesting stuff. Thanks. Good to have you here. Thanks for joining us.

Paul Bender: Thank you.

Paul Bender:Law Professor, Arizona State University;

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