Minutes after President Obama doubled down on his promise to change the country’s immigration system through executive action, Texas Attorney General Greg Abbott made a vow of his own: Expect a lawsuit from Texas.
But some legal experts doubt that Abbott, the governor-elect, could successfully challenge the president's order, which he says he plans to do in federal court.
On Thursday, Obama announced several measures that could shield as many as 5 million undocumented immigrants from deportation. That figure includes about 533,000 undocumented people in Texas who are parents of children living in the country legally.
In a statement, Abbott said Obama's order “circumvented Congress and deliberately bypassed the will of the American people."
“I am prepared to immediately challenge President Obama in court, securing our state's sovereignty and guaranteeing the rule of law as it was intended under the Constitution,” Abbott added.
Proponents of the executive action claim the president is acting within his powers, and point to more than 35 cases in which similar presidential measures have been taken since 1956. They specifically cite an action by then-President George H.W. Bush — a Republican — in 1990 that shielded 1.5 million undocumented people from deportation.
A spokesman for the attorney general would not elaborate on Abbott's statement. He directed a reporter to a statement the governor-elect made on Fox News when Abbott said that the president had violated two provisions of the U.S. Constitution, including one called the “take care" clause “that requires the president to take care to execute the laws and clearly prevents this type of action the president is trying to undertake.” The other, Abbott said, is a violation of a section of the Constitution that gives Congress — not the president — the authority over immigration laws.
“We have seen in Texas the consequences — and we’ve dealt with them from a cost perspective — of the president’s immigration policy,” Abbott said on Fox News referring to this summer’s flood of unaccompanied minors pouring across the Texas-Mexico border. State lawmakers blamed the surge on a 2012 initiative called Deferred Action for Childhood Arrivals that has so far protected hundreds of thousands of younger undocumented immigrants from deportation. That surge, Abbott added, gives the state of Texas standing to file suit.
Bruce Buchanan, a government professor at the University of Texas who specializes in public policy and presidential politics, said that the president’s action is not unconstitutional based on previous actions and interpretations of the Constitution.
“It’s not expressly forbidden,” he said. “There are very few things expressly allowed or forbidden it the Constitution when it touches the president. So no, I don’t think that argument holds water.”
Buchanan added that he is not familiar with any state statute that can be used against the president, but said that doesn’t mean that Abbott wouldn’t proceed anyway.
“As Abbott pointed out, he has brought suit against the president several times,” Buchanan said. “It’s clear that he can bring suit in certain courts but the question is whether that yields anything other than a demonstration that he made the effort.”
Justin Levitt, a constitutional law professor at Loyola University, said there is a possibility that Abbott could win such a claim. "There is a doctrine of states being able to sue on behalf of their citizens," he said. "Then maybe, possibly, that’s enough to come into court."
And he said the answer to the constitutionality question isn't as clearcut as some think because Obama's order is different from what other presidents have done in the past.
But in Levitt's opinion, the president didn't overstep his authority.
Obama's policy is "a little more categorical and a larger number than what’s happened before," Levitt said. "But that doesn’t make it a different exercise of discretion [than what's] been found to be constitutional in the past."
Members of the president’s cabinet are also facing heavy scrutiny following Thursday’s announcement. U.S. Rep. Michael McCaul, R-Austin, the chairman of the House Homeland Security Committee, announced on Friday that he was calling Department of Homeland Security Secretary Jeh Johnson to testify before his committee on Dec. 3rd. Like Abbott, McCaul predicts another surge of illegal immigration in the aftermath of the president’s order.
“As chairman of the Committee on Homeland Security, I will use every tool at my disposal to stop the president’s unconstitutional actions from being implemented, starting with this oversight hearing," McCaul said in a statement. "Sec. Johnson will have the opportunity to answer the American people’s questions, including how DHS will secure our border and prevent additional illegal immigration."
Proponents of Obama’s measure however, say that DHS can legally prioritize how it enforces current law.
"Both the courts and current immigration law empower the Department of Homeland Security to make choices about immigration enforcement,” Ben Johnson, the executive director of the American Immigration Council, said in a statement. “Like his predecessors, President Obama is not providing a permanent legal status to anyone – only Congress can do that."