There’s broad agreement suing the president isn’t likely to work. | M.Scott Mahaskey/POLITICO Obama immigration plans inevitable?

Even if President Barack Obama tests the bounds of his presidential power with the big, unilateral moves he’s promising on immigration, there may be no way to stop him.

Lawyers are debating the legality of a series of immigration-related executive actions the White House is reportedly considering, but there’s broad agreement suing the president isn’t likely to work.


“The court route: I don’t see it,” said Jan Ting, a top immigration official under President George H.W. Bush who opposes Obama’s expected moves.

Legal experts see any challenge to the expected immigration policy changes headed for the same key roadblock facing House Speaker John Boehner’s planned suit over Obamacare implementation delays: finding a way to show the injury needed to press a case in the federal courts.

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“There isn’t really anyone who would be in a position to complain,” said Hiroshi Motomura, a University of California at Los Angeles law professor who favors several of the options Obama is considering.

The lack of a clear path to challenge the president’s expected moves to give more illegal immigrants work permits and relief from deportation seems certain to fuel howls from Obama critics that he’s as much an imperial president as his predecessor — who was often criticized by Obama and other Democrats for overflexing his presidential muscle.

Responding to inaction in the House on immigration reform, Obama has signaled to immigrants’ rights advocates that he plans to take significant new executive actions next month to overhaul the immigration system. They could range from reordering the priority list of deportation cases to dramatically expanding the “deferred action” program he initiated in 2012, which allows immigrants who entered the U.S. illegally as children to apply for a two-year deportation reprieve.

That could mean allowing millions of family members of so-called DREAM-ers to get work permits, or perhaps allowing giving work permits to even broader groups, such as undocumented immigrant parents of U.S. citizens or virtually everyone who’s not considered a high priority to deport.

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“This notion of extending DACA [Deferred Action for Childhood Arrivals] to parents, who were the ones who consciously violated the law, strikes me as ridiculous,” said Ting, now a law professor at Temple University. Obama “has defaulted on his constitutional obligation to faithfully execute the laws.”

However, other experts say most lawyers in the field believe Obama has few restrictions on his ability to decide how and when the U.S. deports immigrants.

“There is, I think, a general consensus that his authority to take executive action is fairly wide as long as it is based on executive branch authority to use prosecutorial discretion to decide how people are treated who are subject to deportation,” said Doris Meissner, Immigration and Naturalization Service Commissioner under President Bill Clinton.

“He’s got a continuum of options from a fairly narrow reworking of deportation priorities all the way to a new program of some kind that would allow more numbers of people to apply for work permits of some kind,” she added.

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What Obama has done so far on immigration and what he’s likely to do in the future can be justified on the theory of prosecutorial discretion, the long-standing executive branch power to decide in which cases the law should be enforced, Motomura said.

“We have a system that runs on discretion. There are 11 million people in the country who in theory are not supposed to be here. Congress has funded the capability to deport maybe half a million people a year,” the professor said.

Motomura, author of “Immigration: Outside the Law,” said he sees no legal bar to expanding the deferred action program. “He could expand it to people who are closely related to those people who have been standing in line to be approved,” the professor said.

But Motomura said that doesn’t mean Obama has a completely open path — nor are there indications the president will attempt to break those boundaries.

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“I think there are real constraints on him,” Motomura said. “He cannot give people a permanent immigration status. He cannot give people green cards. He cannot bypass the process … He cannot give people a path to citizenship.”

Some Republicans feel the president doesn’t have as much leeway as immigrant rights groups suggest.

“If the President may constitutionally permit fifteen per cent of the Nation’s illegal immigrant population to remain in the United States without fear of removal, why may he not do the same for fifty per cent of that population, or for all of it?” George W. Bush Justice Department officials John Yoo and Robert Delahunty wrote after Obama unveiled DACA in 2012. “The failure of an agency to perform its ordinary enforcement duties may be so unreasonable that it may be considered unconstitutional, notwithstanding limitations on its resources. The Constitution confers no express or implied power or authority not to enforce the laws.”

Boehner has complained publicly that Obama’s unilateral moves on immigration are part of a pattern of the president disregarding his legal duties. “This is about him faithfully executing the laws of our country,” Boehner said last month as he announced House plans to file a lawsuit against Obama over alleged executive power overreaches.

Earlier this month, Boehner told reporters that he was considering making Obama’s earlier immigration moves part of the lawsuit. However, the resolution authorizing the suit wound up referring to only the Affordable Care Act.

Asked about the absence of immigration from the planned legal case, Boehner spokesman Michael Steel said: “We considered a range of options — energy regulations, the ‘Taliban 5,’ various delays and changes in the health care law — but our attorneys advised us that this narrowly tailored action had the greatest chance of success.”

While broad immigration moves clearly have beneficiaries, it’s hard to find a person or entity harmed enough by under-enforcement to have the standing to pursue a case in court.

Immigrations and Customs Enforcement agents angry with Obama’s deferred action program filed suit in federal court in Dallas in 2012, alleging that they faced possible disciplinary action for failing to comply with the program.

U.S. District Court Judge Reed O’Connor, a George W. Bush appointee, ruled last year that Obama’s policy appeared to violate the law and that the agents had standing to challenge it. However, he dismissed the case because Congress has passed another law putting such types of federal employee disputes beyond the reach of the courts. O’Connor’s ruling is on appeal to the 5th U.S. Circuit Court of Appeals.

Several legal analysts on both sides of the issue said the political limits caused by House Republicans’ opposition to more executive action, possible fallout for Democratic candidates in November and the ongoing surge of child migrants crossing the U.S.-Mexico border are more significant than any legal limits Obama faces.

“It’s really hard to see how they thread the needle on this,” Meissner said. “This border issue just keeps spinning up, spiraling in terms of the politics surrounding it … It’s hard to see where he’s got the space to go to the more general issues he wants to do through executive action.”

“He’ll reach his political limits long before he reaches his legal limits,” Motomura said.

While the border crisis raises the political risks for the president, it could aid his legal case for discretion since an overwhelmed enforcement system more readily justifies sweeping exemptions than a system which is easily processing illegal migrants who are caught.

Not all conservative legal thinkers appear to agree that Obama has exceeded his constitutional bounds or could readily do so by limiting and refocusing enforcement of the immigration laws. Some experts have pointed to the fact that while the Constitution obliges the president to “take care” to enforce the laws, it also grants him an unfettered right to grant pardons — which suggests wide latitude not to enforce laws against certain individuals or categories of people or perhaps even not to enforce a certain law at all.

“The President may decline to prosecute or may pardon because of the President’s own constitutional concerns about a law or because of policy objections to the law, among other reasons,” D.C. Circuit Judge Brett Kavanaugh wrote in an opinion last year about the Nuclear Regulatory Commission’s failure to comply with a law requiring it to consider setting up a nuclear waste dump at Yucca Mountain in Nevada. “One of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior.”

Kavanaugh, who worked for independent counsel Ken Starr during his investigation of President Bill Clinton and later served as a White House lawyer and as staff secretary under President George W. Bush, didn’t discuss immigration in his NRC opinion last year. However, he did suggest that the president’s power not to enforce the law extends to civil matters — the category the courts use for immigration cases.

“It is likely that the Executive may decline to seek civil penalties or sanctions (including penalties or sanctions in administrative proceedings) on behalf of the Federal Government in the same way. Because they are to some extent analogous to criminal prosecution decisions … such civil enforcement decisions brought by the Federal Government are presumptively an exclusive Executive power,” Kavanaugh wrote.

Yoo said last week that he believes the pardon power applies only in the criminal context, not to deportations.

“The President cannot wipe out a deportation decision no more than he can wipe out a judgment for damages,” Yoo told POLITICO via email. He noted that selective nonenforcement of the tax laws, for example, could allow a president opposed to certain taxes to cut tax rates unilaterally.

“If President Obama can refuse to enforce an entire class of law, such as the immigration law, against millions, because he dislikes the policy, why can’t the next President unilaterally lower tax rates by refusing to prosecute anyone who only pays a 20 percent income tax when Congress requires 33 percent?” asked Yoo, now a law professor at the University of California-Berkeley.

Kavanaugh argued in his opinion last year that the remedy for abuses of the pardon power or of failure to prosecute lies not in litigation but in “public disapproval, congressional ‘retaliation’ on other matters, or ultimately impeachment in cases of extreme abuse.”

The idea that a big immigration move could ramp up calls for Obama’s impeachment is probably a more critical calculation for the White House than any potential lawsuit, Meissner said.

“I don’t think it’s really an issue of the legal arguments. It’s really an issue of the politics and whether any immigration action will feed impeachment or whether you might as well go big because anything you do is going to feed it,” she asked. “Can you take that risk?”