President Barack Obama plans to flex his muscles on immigration tonight — perhaps, critics believe, past the breaking point.
And Gov. Rick Perry made it clear Wednesday that Texas is prepared to lead the legal charge against the executive action the president is expected to announce in his televised address to the nation at 7 p.m.
At the Republican Governors Association’s annual meeting in Florida, Perry said it’s a “very real possibility” that Texas will sue if Obama acts as planned.
Perry, a prospective 2016 presidential candidate, said he has to look out for his state’s best interests. His successor, Texas Attorney General Greg Abbott, has also spoken out about his willingness to try to block Obama in court.
Perry said, “The cost to the people of the state of Texas is an extraordinary amount of money that this president is exacerbating with his announcement that he’s going to allow for this executive order.”
As chief of the executive branch, Obama enjoys considerable authority to act on his own in certain areas, including national security and immigration. His predecessors, Republicans and Democrats alike, have employed similar powers.
But as the representative of only one of three equal branches of the government, Obama also faces legal and political constraints. This tension, between unilateral executive authority and multilateral collaboration, will escalate the minute Obama acts.
The bottom line in the view of the White House and some legal experts: Obama can probably do what he wants.
“I think what we’ll be confidently able to do is to explain … what legal authority the president is using to take these actions,” White House press secretary Josh Earnest said Wednesday.
Tonight, Obama is expected to sign an executive order to give up to 5 million illegal immigrants the authority to stay and work here.
Is it amnesty?
Critics will call this amnesty, and Obama has sparked a wave of outrage and threats from Republicans on Capitol Hill, everything from impeachment and a government shutdown to less drastic moves, like cutting off funds that would finance the president’s intentions.
But amnesty it’s not. Unlike a permanent amnesty, Obama’s action will be confined to his term in office and can be overturned by his successor.
Moreover, he apparently won’t say that the specified immigrants cannot be deported. Instead, citing his authority to set executive priorities, the president will essentially direct immigration officials to focus their attentions elsewhere.
It’s called prosecutorial discretion. It’s what happens, for instance, when one administration wants Justice Department prosecutors to focus on drug cases or financial crimes and another redirects their focus to counterterrorism.
“The notion of prosecutorial discretion can be traced throughout the length of our history,” said Christopher Schroeder, the Charles S. Murphy professor of law and public policy studies at Duke University Law School.
He said the practice is “long and robust.”
Speaking at a recent conference of the Federalist Society, a conservative legal organization, Schroeder said “it is literally impossible to enforce all the laws all the time, so choices are always being made.”
After Hurricane Katrina in 2005, President George W. Bush invoked prosecutorial discretion to suspend for 45 days enforcement of employer sanctions.
Bush’s unilateral move enabled employers to hire illegal immigrants without fear of being penalized. After the 45 days were up, the Homeland Security Department said in an October 2005 statement that it would “continue to exercise prosecutorial discretion on a case-by-case basis.”
The post-Katrina leniency was followed up two years later when Bush’s head of Immigration and Customs Enforcement, Julie L. Myers, declared in a Nov. 7, 2007, memo the “importance of exercising prosecutorial discretion when making administrative arrest and custody determinations for aliens who are nursing mothers.”
In other words, Myers was directing immigration officials to leave nursing mothers alone.
Other presidents have imposed far more sweeping policies, as happened throughout the 1960s, when 600,000 Cubans were granted parole. Earnest added that President George H.W. Bush expanded a family program to cover more than 1.5 million unauthorized spouses and children.
“I have no doubt that President Obama has executive-branch legal authority to take the expected immigration action,” Leti Volpp, a professor at the University of California Berkeley School of Law, said in an email interview Wednesday.
GOP leaders aren’t satisfied.
“I’m still trying to find the place in the Constitution that says if the Congress doesn’t do this, the president can,” Republican Sen. Roy Blunt of Missouri said on the Senate floor Wednesday.
“Statements [Obama] made more than one time show he couldn’t find it, either,” Blunt said.
In a Telemundo interview in September 2013, for example, Obama said that if he were to broaden an exception he made in 2012 for the children of illegal immigrants, “then essentially, I would be ignoring the law in a way that I think would be very difficult to defend legally.”
Similarly, in a February 2013 Google Hangout, Obama said he was “not the emperor of the United States. My job is to execute laws that are passed.”
Staff writer John Gravois contributed to this report.