President Obama’s ‘Deferred Action’ Program for Illegal Aliens Is Plainly Unconstitutional

That’s the title of a new paper by Temple University law professor Jan Ting (who appeared on NRO recently). It is the first extended analysis of the administration’s legal rationales for President Obama’s lawless amnesty decrees. Professor Ting divines “three separate assertions of authority to justify its alternative presidential immigration system,” examining each in turn. He concludes that each legal step — prosecutorial discretion, advance parole, and employment authorization — is being taken illegally and that “the three steps, taken together, amount to an unconstitutional usurpation of Congress’s exclusive constitutional authority to formulate immigration policy.”​

The problem with taking a matter like this to court is often the question of who has legal standing to sue. Professor Ting at the end of his paper points to a recent positive ruling in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, which suggests that the president’s prospective grant of work permits to millions of illegal aliens might be subject to court challenge. In that case, the U.S. District Court judge in Washington, D.C., ruled last month that American tech workers have standing to sue the government to challenge the legality of the Bush administration’s unilateral expansion of a foreign-worker program. (More detail on the ruling is here.)

Combined with the legal critiques offered at the House Judiciary Committee hearing going on as I write (the witness statements are here), it would seem that challenging Obama’s amnesty-by-fiat in court is worth pursuing in tandem with efforts in Congress to defund it.