Only Voters Can Hold Obama Accountable For Illegal Amnesty Policy

By Ken Klukowski | June 17, 2012 | Breitbart News

President Obama’s new amnesty policy regarding illegal aliens violates the law. But there’s probably no route to trump it either in Congress or in court, so the only recourse is for the American people to trump it by electing a new president.

Obama’s actions on granting backdoor amnesty fall into two different stages. Each is illegal for different reasons. However, occasionally situations can arise in our constitutional system where there is a “right without a remedy,” where people’s rights are being violated but there’s nothing a court can do about it. That’s what’s happening here.

Although the details are still unclear, according to reports Obama’s new policy will be not to deport illegal aliens if they (1) were brought to America before age 16, (2) have not yet reached age 30, (3) have no criminal record, (4) have graduated from high school, and (5) are either pursuing college or serving in the military. Aliens meeting all five criteria can be issued work visas and won’t be deported.

The argument Obama is using is that prosecutorial discretion gives the executive branch sole discretion to determining which cases to allocate resources to, so they can decide which aliens to deport. One problem with that argument is that there’s a difference between deciding case-by-case which ones to go after, versus making a policy of not going after anyone in a very broad category. Another is that such discretion doesn’t in any way extend to issuing work visas.

Commentators are already talking about lawsuits. There are two parts to this policy, and neither can be challenged in court.

The first part consists of the president’s speech and any executive orders he makes pursuant to that speech. (Such as ordering the Department of Homeland Security (DHS) to stop deportations.)

No one can sue over those, because there’s no right of action in federal court over presidential speeches or orders. (Unless, perhaps, if a president issues an order directly against a specific person or organization, which is not the case here.) You must cite to some constitutional provision or federal statute that empowers you to take an issue to court.

A right of action will be created when DHS Secretary Janet Napolitano acts on Obama’s order by creating regulations for issuing the work permits and stopping deportations. The Administration Procedure Act (APA) creates a cause of action for any regulation that is “contrary to law.” These new lawless rules and regulations certainly qualify.

However, you probably still can’t have a lawsuit because no one has standing. In order to have standing to sue in federal court, a plaintiff must assert a personal injury that is different from an abstract injury to the public at large; one that is clear and concrete; one that can be directly traced to the defendant; and one that a court can fix by giving the plaintiff what he asks in the lawsuit.

As the Supreme Court reiterated again just last year: “By rules consistent with the longstanding practices of Anglo-American courts a plaintiff who seeks to invoke the federal judicial power must assert more than just the generalized interest of all citizens in constitutional governance.” Likely, no one has standing here because no one can show how they are directly injured in a concrete fashion that is different from most other Americans.

Congressman Steve King (R-IA) is willing to sue President Obama. While King is a stalwart constitutional conservative warrior (and full disclosure–as a lawyer I have represented King on amicus briefs in a couple cases), he can’t sue on this one. Even if Congress has standing to sue over immigration, in its 1997 case Raines v. Byrd the Supreme Court held that Congress can only assert a right to sue by a majority of the House or Senate voting for a resolution authorizing the lawsuit. No lone congressman or group of congressmen has standing to act for the House.

Turning to congressional action, there are only two theoretically possible routes, but both would fail.

Read the full article here.

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