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GOP Threatens Immigration Action Lawsuit - On What Grounds? By Roger Algase

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As part of their strategy to try to stop President Obama from expanding relief from deportation through executive action, Republican leaders are reportedly considering a lawsuit, according to a November 13 Washington Post article: Boehner weighs expanding suit over Obama executive powers to cover immigration (Link not available.)

According to the Post, House Speaker John Boehner is thinking of expanding the scope of a proposed lawsuit against other uses of executive power to include executive action over immigration.

The only problem, according to the above report, is that GOP lawmakers are having a problem finding a Washington law firm willing to take on such a lawsuit.

Does this mean that all the Washington lawyers are so busy that none of them has room to take on any new clients? Or is it just barely possible that a lawsuit attempting to block the president from taking executive action over immigration, an area in which which the federal courts have been upholding broad executive power for more than 120 years, has so little merit that no reputable law firm would be interested in handling such a case?

Granted, as I have been contending in my discussion of Supreme Court decisions dating from the time of the infamous 19th century exclusion laws (one of the lowest points, if not the lowest, in America's entire immigration history), that the doctrine of broad executive power over immigration was developed in order to keep unwanted immigrants out of the US, not to let them in or allow them to stay.

Nor have present day immigration opponents shown any great concern at the use of executive powers for the purpose of throwing people out of the US in the 21st century. How much opposition was there to President George W. Bush's "Special Registration" program in the wake of 9/11, which resulted in deporting thousands of Muslim immigrants as overstays or for other often minor immigration violations without, so far I am aware, catching a single terrorist, before the program was finally cancelled as useless?

Similarly, there has been little or no objection from the restrictionist side when the executive branch uses these same broad powers to keep moving the goal posts and changing the rules to make legal visas, such as H-1, L-1 and J-1, to mention only a few, harder to qualify for, something that the Obama administration has become so proficient at as to have developed it almost into an art form. (I did not meant to leave O-1 "artist" visas out of the above list!)

Arguably, the Supreme Court Justices who upheld broad executive power over immigration in late 19th century cases such as Chae Chan Ping v. U.S., Nishimura Ekiu v. U.S. and Fong Yue Ting v. U.S. might not have been able to foresee that these same executive powers might be used more than a century later to let millions of immigrants from unpopular (among some members of the white majority) ethnic groups stay in the United States, instead of being thrown out.

But the Supreme Court, in these decisions and many successive ones, did not see fit to place limits on executive power over immigration enforcement according to the results from the use of such power, whether favorable or unfavorable to the concerned immigrants.

Therefore, broad executive power over immigration enforcement is still the law today (for the most part - there have been some badly needed improvements over the harsh 19th century decisions with respect to rights involving due process, right to counsel, and statutory interpretation) when broad executive power benefits immigrants, not only when it affects them adversely.

This might just possibly have something to do with the difficulties that Speaker Boehner and his colleagues are said to be having in finding counsel to represent them in their lawsuit.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been successfully upholding the legal rights of business, employment and family-based immigrants for more than 30 years. His email address is

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Updated 11-15-2014 at 12:41 PM by ImmigrationLawBlogs

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  1. Tobias Nojob's Avatar
    The Constitution is based on British Common Law, Vatican's Code of Canon Law and Admiralty Law (influenced the latter by the Ordinamenta et Consuetudo Maris). As a matter of jurisprudence, this historical document adheres to the doctrine that Admiralty Law prevails over Common Law and goes in accordance with Canon Law. Executive orders and proclamations are directives or actions by the President. When they are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law.

    Moreover, the Immigration issue is covered under the umbrella of National Security and has more relevance during times of war (in legal terms the United States of America is currently in a State of War); therefore, President Obama will simply issue an Executive Order that fits under such parameters (immigration is not a civil affair per se, instead it is governed by Admiralty Law).

    Congress and public uproar dealing with any potential temporary relief issued by the Executive branch for certain unlawfully present immigrants is pointless, and the set of laws governing this issue are extremely clear (and broad as well).
  2. ImmigrationLawBlogs's Avatar
    This is a very interesting, though somewhat novel, analysis of the legal basis for executive power over immigration, though I don't exactly see how admiralty law, let alone Canon law, fit into this framework.

    The only part that I am sure I would be able to agree with is that, according to the Supreme Court decisions I have been discussing, executive power over immigration must be carried out within limits placed by the Constitution.

    However, the 19th century decisions I have mentioned essentially hold that the Constitution gives the executive (together with Congress) virtually unlimited powers over immigration.

    The argument that the president would be acting "against the ConstitutIon" by granting relief from deportation, has little or no support from these cases.

    The question, therefore, is whether the president would be going against the intent of Congress, the other "political" branch of government, by granting relief from deportation without specific Congressional approval.

    In the 19th century exclusion law period cases I have mentioned, the Supreme Court held that Congress had given broad powers to the executive to administer the immigration laws.

    The situation is little different today. Congressional provisions over immigration exist for the most part in broad outline only.

    The actual details are governed by DHS, DOL DOJ and DOS regulations, as interpreted by agency officials or bodies such as AAO, BALCA, BIA, etc, or, just as often agency memos or guidance without even going through the rule-making process required to issue or change executive branch regulations.

    It is no wonder that Speaker Boehner et al are having a hard time finding a law firm willing to handle any lawsuit claiming that the executive branch is exceeding its Congressionally bestowed authority over immigration.

    What would be the basis of such a lawsuit?

    Roger Algase
    Attorney at Law
    Updated 11-15-2014 at 04:15 PM by ImmigrationLawBlogs
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