Seventeen states and governors sued the Department of Homeland Security on Wednesday in a bid to halt President Obama’s new deportation amnesty, saying he violated the Constitution and broke federal laws by granting tentative legal status to millions of illegal immigrants.
“This lawsuit is not about immigration. It is about the rule of law, presidential power and the structural limits of the U.S. Constitution,” the governors said in a 75-page complaint, filed in federal district court in Texas.
The governors said they have standing to sue because they and their state taxpayers will be left on the hook for expenses related to schooling, health care and police to handle the extra illegal immigrants who will now have federal permission to stay in the U.S. despite having no permanent lawful status.
And the plaintiffs carefully chose the court where they filed their challenge, selecting Brownsville, Texas, where a judge last year wrote a scathing rebuke of Homeland Security for aiding human smugglers.
Mr. Obama’s unilateral immigration action, announced Nov. 20, would grant tentative status and work permits to nearly 5 million illegal immigrants, and would remove many others from any danger of deportation — though they would not have the same legal status as those officially granted the amnesty.
The policy provoked outrage among conservatives, immediately spurring Maricopa County, Arizona, Sheriff Joseph M. Arpaio to sue the administration and the GOP states to organize a lawsuit.
In Congress, Republicans have searched for ways to use legislation to block the president. Most GOP lawmakers have settled for a three-pronged attack that delays the showdown until the new Congress convenes in January, when Republicans will have the added leverage of controlling both the House and Senate.
The GOP-run House is prepared to vote Thursday on a bill by Rep. Ted S. Yoho, Florida Republican, that would declare the president’s action void. But it won’t get a vote in the Democrat-run Senate, rendering it a symbolic gesture.
Next week the House is expected to take up a pair of bills designed to set the stage for an immigration duel next year.
An omnibus bill will fund most of the government for the rest of the fiscal year, avoiding a government shutdown when current spending expires Dec. 11. A separate short-term spending bill will keep the Department of Homeland Security open until early next year, when the budget battle over immigration will begin in earnest.
Conservative lawmakers, who want to take a stand now against the amnesty, balked at the plan. But GOP leaders remained confident the bill will pass, likely with help from Democrats.
Senate Majority Leader Harry Reid, Nevada Democrat, has given the two-bill approach a green light as he prepares to close out his days atop the majority.
Under the setup, Mr. Obama could be confronted with legislation defunding his amnesty action and a likely veto battle with a GOP-run Congress before the end of January.
On Capitol Hill a small band of tea party conservatives rallied with like-minded lawmakers Wednesday, with calls to immediately defund Mr. Obama’s immigration moves.
Texas Sen. Ted Cruz, a tea party champion and prospective 2016 presidential contender, urged fellow Republicans to keep the campaign promises that helped them win control of the Senate and a larger majority in the House.
“What I am here urging my fellow Republicans to do is very, very simple: Do what you said. Honor your commitment,” he told about two dozen demonstrators.
Still, Mr. Cruz avoided talk of a government shutdown.
Mr. Obama defended his move in remarks to a gathering of business leaders, saying he wanted to keep the amnesty in place even if he and the new Congress strike a deal on other immigration issues, such as increased border security.
“I am not going to preside over a system [where] we know these folks are in the kitchens of most restaurants in the country, are cleaning up most of the hotels that all of you stay in, that are doing the landscaping in most neighborhoods where you live, whose kids are going to school with our kids, and we tolerate it because it’s good for us economically to have cheap labor and services, but we never give them a path to be part of this country in a more full and fair way,” Mr. Obama told the Business Roundtable meeting in Washington.
“That’s just not who we are,” he said.
The new lawsuit, which was spearheaded by Texas Attorney General Greg Abbott, repeatedly uses Mr. Obama’s own words against him, pointing to the nearly two dozen times he said he didn’t have the power to take the actions he took.
And in one critical attack, the lawsuit points to Mr. Obama’s own claim last week that he “took an action to change the law.”
“In this case, the president admitted that he ‘took an action to change the law.’ The defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100 percent is a de facto entitlement — one that even the president and OLC previously admitted would require a change to the law,” the challengers said in their complaint.
At the White House on Tuesday, press secretary Josh Earnest tried to walk back Mr. Obama’s law-changing comment, saying the president was trying to speak to the level of his audience in Chicago at the time.
“I think he was speaking colloquially,” Mr. Earnest said.
The spokesman went on to say that while the president didn’t change the law, his actions did change the way the law affects millions of people. “I think that’s what the president was alluding to,” Mr. Earnest said.
Legal analysts have heatedly debated whether Mr. Obama’s actions are legitimate, with the Justice Department saying that while it’s the biggest claim of prosecutorial discretion in history, the same moves were done on a smaller scale by previous Republican presidents.
However, it’s not even clear the courts will take the case. Judges have routinely rejected challenges to presidential actions by finding that plaintiffs can’t show a specific injury and thus don’t have standing to sue.
To combat that, Texas took pains to describe the increased spending for health care, licensing, policing and education.
The challengers also chose a Texas court where Judge Andrew S. Hanen last year blasted the Homeland Security Department for what he said amounted to aiding smugglers.
He said he’d come across several cases where illegal immigrant children had been smuggled into the U.S. and caught, only to have Homeland Security agents close the smuggling loop by delivering the children to their illegal immigrant parents already in the U.S.
“Instead of enforcing the laws of the United States, the government took direct steps to help the individuals who violated it. A private citizen would, and should, be prosecuted for this conduct,” the judge wrote.