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Would Plan B Legalization for 11 Million be Constitutional? By Roger Algase

Rating: 2 votes, 5.00 average.
In my August 13 post, I suggested that House Republicans might try to impeach President Obama if he issues a "Plan B" executive order legalizing 11 million immigrants in the event that the House were to kill immigration reform, as most Congressional Republicans appear anxious to do.

However, like many other things that the House is threatening to do these days, this would only be an empty gesture, because the chances of the president's actually being removed from office by a Democratic-controlled Senate are zero.

Moreover, if the House doesn't try to impeach President Obama over an immigration executive order, many Republicans seem to be looking for some other excuse to hold an impeachment circus, as I also mentioned in my last post.

The fact that the president was born, for example, seems to be grounds for impeachment in the view of some Republicans. Impeachment might even be considered a badge of honor - a sign that a president really did something for America in order to become the target of right wing lunacy.

A more serious obstacle to an executive order for legalization could be a court challenge on Constitutional grounds. It is true that the executive has great leeway in administering the immigration laws, but this is not unlimited.

Also, this argument cuts both ways. If a Democratic president has the power to legalize 11 million people with the stroke of a pen, what would there be to stop a future Republican president from revoking the visas, or even green cards or naturalization, of many millions more people through administrative action, say on "national security" grounds?

At some point the Supreme Court would have to step in, just as it did in 1952 when President Harry Truman tried to nationalize the steel industry during the Korean war. See Youngstown Sheet & Tube Co. et al. v. Sawyer 343 U.S. 579 (1952).

I remember as a student who had just finished my first year of high school at that time what a tremendous uproar there was when the Supreme Court invalidated the president's attempt to take over the industry based on his claim of emergency powers, even though every one of the nine justices who heard that case had been appointed either by Truman himself or by his Democratic predecessor, Franklin Roosevelt.

If President Obama were to issue a sweeping Plan B executive order after Congress had refused to pass legalization, what chance would this action stand in today's Republican-dominated Supreme Court? Would even any of President Obama's own Democratic appointees stand with him? This is highly doubtful.

Even if Congress eventually passes CIR, there is almost certain to be a Republican-inspired Constitutional challenge to legalization on some grounds or other, just as there was with the Affordable Care Act.

As we all remember, the ACA survived in the Supreme Court by only one vote. If there ever is a Senate-House conference on CIR, as some optimists are still convinced there will be, the conferees will need to be careful that in addition to avoiding substantive poison pills in the final version, any possible Constitutional poison pills will be eliminated too.

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Updated 08-14-2013 at 10:15 AM by ImmigrationLawBlogs

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Comments

  1. inteconlaw's Avatar
    After 35 years practicing immigration law, my only concession to legalizing the 11 million illegals in the USA is that it was through the lack of enforcement of the immigration laws that have been on the books since the last Amnesty in 1986. The government simply turned a blind eye for more than 20 years.


    In my opinion, the government now has no right to deny legalization for those it let work without authorization for so many years. However, having said that; it should allow legalization ONLY for those illegals already here and employed, and deny benefits to unemployed family members, which would create a flood gate of immigration that nobody would want to deal with. Of course the DACA is another thing and I am in favor of that, but also restricting the conference of immigration benefits on relatives.


    "Comprehensive Immigration Reform" will not pass. If it does, hold on to your hats . . . . the immigration system mess it will engender will be with us long after I'm dead and buried.
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