The States vs. Obama

Republicans in Congress are divided about how to respond to President Obama unilateral immigration order, though they seem determined to take a run at defunding the order’s enforcement next year. That won’t be as easy as it sounds given the presidential veto, which means that the lawsuit filed recently by Texas and 24 other Attorneys General may be the best chance to discipline Mr. Obama’s legal abuses.

The White House is offering de facto legal status, work permits and government benefits to millions of undocumented immigrants on the pretext of prosecutorial discretion. Rather than the case-by-case review that has always been the norm for the use of limited resources, Mr. Obama is rewriting the law to categorically exempt whole classes of people.

This gambit deprives Congress of its proper law-making role and violates the Constitution’s vertical separation of powers between the states and the federal government. Supreme Court precedent including 2012’s Arizona ruling holds that federal governance of citizenship and borders is supreme over state preferences, but the bargain is that they shape those policies through their elected representatives in Congress.

In the absence of democratic consent, Mr. Obama is intruding on the roles of the other branches of government—in this case, the police powers that belong to states. While Congress could legitimately pre-empt those powers, here it did no such thing. Thus the states no less than Congress have a judicially enforceable claim against the President for disrespecting the basic constitutional limits on his actions and his duty to faithfully uphold the laws.

On Christmas Eve, the Department of Justice responded to the states and claimed that they are the ones attempting to usurp the “sovereign prerogative of the federal government.” This is an unusual reading of the take-care clause and separation of powers, to say the least, which would allow the feds to violate the law and Constitution with no recourse for anyone ever. The DoJ lawyers can consult David Rivkin and Liz Foley ’s recent op-ed in these pages for a remedial tutorial (“Obama’s Immigration Enablers”).

Justice also claims that the plaintiffs are merely articulating “generalized disagreement” about the merits of Mr. Obama’s order and thus they lack the Article III standing to sue. That argument may apply to Congress, but the states can show tangible injuries. They bear many of the costs of increased immigration, including law enforcement, K-12 education and benefit programs such as Medicaid. Texas state troopers spent $1.3 million a week this summer dealing with the surge of Central American children.

By acting unilaterally and condoning law-breaking, Mr. Obama has increased the incentives to come here illegally and encouraged people to stay in the expectation of a future executive amnesty. While the U.S. was never going to forcibly deport millions of people, the deterrent effect of the laws on the books has been weakened, creating an ongoing injury to states. Mr. Obama’s order also may increase human trafficking, especially among the Mexican drug cartels that are a major public safety threat along the border.

We support a welcoming, nonpunitive immigration policy and the net economic benefits far outweigh the government costs, but the burden on the states is nonetheless real. The state lawsuit may end up going all the way to the Supreme Court, but a district court decision vacating Mr. Obama’s order and his new categorical exemptions is the first step toward vindicating the rule of law.