The Office of Legal Counsel memo released before Obama’s speech cites Obama’s Article II Section 3 constitutional duty to “take care that the Laws be faithfully executed” as the source of his power to grant this amnesty.
The memo reasons that since there are 11.3 million illegal immigrants in the country today, and DHS only has the resources to remove 400,000 illegal immigrants every year, Obama must choose which immigrants to deport and which to ignore. This “prosecutorial discretion” power, the memo claims, allows Obama to choose which illegal immigrants get work permits, which illegal immigrants will continue to be ignored, and which illegal immigrants will be deported.
Under this legal theory, Obama could give all current 11.3 million illegal immigrants work permits and driver’s licenses, as long as he kept deporting at least 400,000 illegal border crossers every year.
Will courts let Obama get away with this?
They already have. In 2012, after Obama announced his DACA program, Immigration and Customs Enforcement agents sued the Department of Homeland Security challenging the legality of Obama’s first executive amnesty program.
But while the court found that the border agents “were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate,” the court also ultimately determined that the plaintiffs did not have standing to sue DHS since the Civil Service Reform Act of 1978 already established an administrative process for resolving disputes between federal employees and their employer.
The harms from Obama’s illegal amnesty programs are just too diffuse for any one litigant to establish standing in federal court.
