President Obama’s action on immigration represented a breach of the Constitution that will encourage more people to cross the border illegally, the chairman of a House committee said Tuesday in the latest wave of criticism of the action that Republicans call an overreach by the president.

“Our immigration system is broken, and we need to fix it,” said Homeland Security Committee Chairman Michael McCaul of Texas.“There’s a right way to do this and a wrong way, and unfortunately, the president has chosen the wrong way.”

“They’ve taken a sweeping approach to prosecutorial discretion that makes a mockery of the law,” McCaul said.

Homeland Security Secretary Jeh Johnson, appearing before the committee, countered that he was confident that the action last month, which protects some 5 million people from deportation, was well within the president’s legal authority. He said that Obama only acted after it became clear that House Speaker John Boehner was not going to be able to corral the votes to pass an immigration reform bill, and after midterm elections.


“We’ve waited a considerable amount of time,” Johnson said.

Obama announced last month that the administration would offer three-year work permits to people who have been in the country at least five years, and who are parents of citizens or other legal residents. That provision could shelter an estimated 4 million people, but does not offer a path to citizenship or legal status. The action also would open the door for more people who came as children to apply for a reprieve from deportation.

McCaul said that the program, by giving the impression that the U.S. isn’t interested in removing unauthorized people, “would become a powerful magnet that encourages more illegal immigration.”

“If we don’t think that message is making its way back to Mexico and Central America, we are simply fooling ourselves,” McCaul said.


But Johnson said the program will allow the department to focus more resources on border enforcement and on finding and removing criminals.

“The reality is that, given our limited resources, these people are not, and have not been for years, priorities for removal,” Johnson said. “It’s time we acknowledge that and encourage them to be held accountable. That is simple common sense.”

Rep. Jason Chaffetz (R-Utah) said those border security assurances ring hollow, in light of a border crossing by four Kurdish migrants who entered the U.S. illegally through Texas in September. Although Johnson said in a speech in October that they would be deported, he said during the hearing Tuesday that two of the four actually were released by an immigration judge and made it across the border to Canada, where they are seeking asylum.

Johnson said the judge’s decision was “not my preference.” The other two are still in detention, he said.


Chaffetz said in an interview that he has learned that the two were released by a judge in San Antonio on Nov. 12. They then flew from Phoenix to Seattle and crossed the border near Blaine, Wash., and were arrested by the Royal Canadian Mounted Police.

“They claim they have legal authority to just release everybody and grant them this amnesty,” Chaffetz said of the Obama administration, but not the authority to deport the four migrants with ties to a terrorist-designated group: “That’s outrageous. That’s double-speak at its worst.”

Republicans have discussed ways to thwart the president’s action, including a lawsuit or an attempt to cut off funding. But aside from the bitter outcry against the president’s action, the party remains divided on how to proceed and on whether people here illegally should get a path to become citizens.

McCaul accused Obama of “hypocrisy” for asserting earlier in the year that he couldn’t act on immigration without Congress. “Who should we believe, the president before the election, who said he didn’t have legal authority to take this action, or the president after the election who says that he does have the authority to take this executive action?” McCaul said.


But the Obama administration has said that the president has drawn a distinction between conferring legal status, which they say can only be done through legislation, and exercising discretion on how to enforce immigration laws.

“The current situation amounts to amnesty,” Johnson said. “We want people to be accountable, to come out of the shadows.

“We have lots of undocumented [people] in this country working off the books, and if that’s not apparent, then I suggest you spend some time in a restaurant here in the Washington, D.C., area – see it for yourself,” Johnson said.

Rep. Lou Barletta (R-Pa.) noted that the people who receive work permits under the new program won’t be eligible to participate in the Affordable Care Act. Employers, he said, might choose to “get rid of the American worker” so they don’t have to provide health insurance under the law.


“I don’t see it that way,” Johnson replied.

Johnson called on Congress to approve his request for more border security funds, and said he remains willing to work with Congress on immigration legislation. Obama has repeatedly said that if he signs such a bill, it would supersede his own actions on immigration.

“If we could just strip away the emotion and the politics on this issue, and you brought me the right group of members of the House of Representatives, I could negotiate a bill with you,” Johnson said. “It should not be that difficult.”

At another hearing Tuesday, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), excoriated Obama for “one of the biggest constitutional power grabs ever by a president.”


“By acting lawlessly and assuming legislative power, the Obama administration is driving full speed ahead to a constitutional crisis, tilting the scales of our three-branch government in his favor and threatening to unravel our system of checks and balances,” he said.

Rep. Zoe Lofgren, a California Democrat and a former immigration lawyer, said Obama acted within his authority, and only “in the face of congressional inaction.”

Twitter: @jtanfani