On November 20, President Obama delivered a compelling speech to the nation addressing the US immigration system. In his speech, the president announced an action plan that would shield millions of illegal immigrants from deportation, granting more than five million the right to work legally.
The new program, referred to as DAPA (Deferred Action for Parental Accountability), mirrors its predecessor, DACA (Deferred Action for Childhood Arrivals), which was implemented two years ago. Under DACA, undocumented young people brought to the US as children can apply for a two-year “deferred action” that lets them remain in the country temporarily without fear of being deported.
According to conservative lawmakers, the President’s actions were seen as an abuse of power. Right-wing media was quick to attack Obama. They have accused the president of lawlessness and declared his order “unconstitutional,” despite the fact that an overwhelming majority of legal experts agree that the president’s action is justifiable in service of family unification.
President Obama has defended his position, claiming that such measures were not only necessary but also consistent with powers that have been exercised by presidents in both parties for decades.
“I continue to believe that the best way to solve this problem is by working together to pass that kind of common sense law,” Obama said. “But, until that happens, there are actions I have the legal authority to take as President—the same kinds of actions taken by Democratic and Republican Presidents before me—that will help make our immigration system more fair and more just.”
The president’s reference to the law as “common sense” alluded to the backlash and pushback he was receiving from the Republican leaders in the House of Representatives who have refused to allow a vote on a bipartisan immigration reform bill.
Law professors and other legal experts have come forward to affirm the president’s actions and the constitutionality of his use of executive power.
A flurry of lawsuits on part of conservative groups and states, however, threaten President Obama’s immigration plan, stirring public opinion against a policy meant to advance the debate over immigration and serve as one of Obama’s signature triumphs.
“Everything President Obama is contemplating is authorized by the Constitution and is expressly enumerated in the Immigration and Naturalization Act, and that’s an authority Congress gave the President in 1952,” says immigration lawyer and Boston College Law Assistant Professor Kari Hong.
Hong says the Obama administration has not one but three legal categories allowing for the executive action on immigration, the first and most important one being Prosecutorial Discretion. In this case, Hong claims that Obama has the discretion and authority to direct all immigration officers to no longer enforce immigration laws with respect to certain people; that serves as a sound exercise of legal authority under the Constitution.
For those attempting to make a legal case against the president, the challenges will be an uphill battle. The main hurdle for any lawsuit will be proving “standing,” and thus the argument for harm, be it financial or otherwise.
“If the president tries to create a new law, he can’t do that. If he tries to create a new remedy, he can’t do that. But he can provide temporary legal relief for certain classes of people and that is fully with his power,” says Hong.
“Will people challenge it? Probably. But will those challenges survive in court? Probably not.”