With President Obama poised to sign an Executive Order halting deportation proceeding for young law abiding undocumented immigrants and with upcoming Senate approval hearings on the President’s appointment of U.S. Attorney Loretta Lynch as successor to Attorney General Eric Holder, the stage is being set for impeachment proceedings. The issue being positioned is whether Executive Action on immigration by the President is Constitutional or not. The Attorney General nominee AUSA Lynch is surely to be asked that question.
The Presidential Executive Action appears to be focused on an expansion of the Deferred Action for Childhood Arrivals (DACA) program which temporarily stops the deportation proceedings for young law abiding undocumented immigrants. This is considered an exercise of standard prosecutorial discretion which is typical of law enforcement agencies. Some argue that an open ended Executive Order which affects hundreds of thousands of undocumented immigrants might exceed Presidential authority and there is already talk of impeachment. They refer to such an order as Amnesty. However, legal scholars explain that Amnesty is permanent similar to the Immigration Reform and Control Act (IRCA), Pub L. 99-603. Pub.L. 99–603, 100 Stat. 3445, enacted November 6, 1986, also known as the Simpson-Mazzoli Act, signed into law by Ronald Reagan on November 6, 1986. This law
- Required employers to attest to their employees’ immigration status;
- made it illegal to hire or recruit illegal immigrants knowingly;
- legalized certain seasonal agricultural illegal immigrants, and;
- legalized illegal immigrants who entered the United States before January 1, 1982 and had resided there continuously with the penalty of a fine, back taxes due, and admission of guilt; candidates were required to prove that they were not guilty of crimes, that they were in the country before January 1, 1982, and that they possessed minimal knowledge about U.S. history, government, and the English language.
Law Professor Hiroshi Motomura at UCLA stated that an expansion of DACA is a way for immigration officials to use limited law enforcement resources to create a list to prioritize who should be deported first. In an interview with the Washington Post, he said: “…If the President can make a list to prioritize those who should be deported first, then I think its clear that he can give people at the bottom of that list a piece of paper saying you’re at the bottom…It’s clearly within his discretionary power. But if he did this for every single immigrant, he would no longer be exercising his discretion. That would be problematic.”
Speaking on CNN, today, Newt Gingrich said that if the President goes forward with the Executive Action, then the Congress can simply vote to de-fund those persons who are engaged in carrying out the action. This, of course would be a Catch-22 for Congress because it would effectively halt all deportations altogether. In addition, any action towards impeachment would be met with legal challenges in the Court that would probably be sped along to the Supreme Court of the United States. Should that happen and should impeachment fail, it could well impact on the Presidential race in 2016. However things run, Loretta Lynch is squarely in the cross-hairs and will be asked a number of difficult questions on any action taken on immigration by the President.
Jeffrey Newman represents whistleblowers