tv Inside Story Al Jazeera December 6, 2014 9:30am-10:01am EST
defeat it. rob reynolds, al jazeera, san francisco. >> and a reminder that you can keep up-to-date with all the news all the time on our website www.aljazeera.com. our top story in the death of an american and south africa hostage in yemen. >> the house of representatives has set up a roadblock to the president's immigration policies passing a law requiring him to cease and desist, and 17 states are suing him. symbolism or substance. it's inside story.
>> hello, i'm ray suarez. by a close and party line vote the u.s. house of representatives have prevented the president to postpone deportation of people who don't live in the country legally. what the republican sponsor ted yoho of florida called preventing executive overreach immigration act of 2014 says any action by the executive action with the purpose of circumventing this section shall be null and void and without legal effect. the governors of 17 states are suing the president for violating what is called the take care clause of the constitution. article 2, which lays out of the duties and requirements of the president said he hall take care that the laws be faithfully executed. can the governors do that? will it work? it's inside story. >> a joint lawsuit filed by 17 states against
president obama's action the house of representatives voted yes by a relative ly slim margin. on an amendment declaring the president's action null and void. >> he thinks he can sit in the oval office and write his own laws, and then he comes forward with this proposal to literally disregard enforcement of our nation's immigration laws. this isn't going to stand, mr. speaker. this legislation says you can't do that, mr. president. there is a rule of law. you need to start enforcing that law. >> but with the democrats still in control of the senate, until january, the bill will most likely not move forward. spearheading the lawsuit is texas' attorney general greg abbott. >> the president's executive order and actions of federal agencies to implement that executive order directly violate a fundamental promise to the american people.
>> the governors and attorneys general following abbott's lead are almost all republican from alabama, georgia, idaho, indiana, kansas, louisiana, maine, mississippi, montana, nebraska, south dakota, utah, west virginia, wisconsin, south carolina, and north carolina. >> i feel very strongly that the president overstepped his authority in the executive branch, and is making law as opposed to executing law, and we as the states are impacted. >> if you've been in america for more than five years, if you have children who are american citizens or legal residents, if you register, pass a criminal background check, and you're willing to pay your fair share of taxes you'll be able to apply to stay in this country temporarily without fear of deportation. >> reporter: the president granting more than 4 million undocumented migrants a chance
to stay in the u.s. is, quote, rewriting the immigration laws and contra-detectiveing priorities as directed by congress. as such the directive violates the aforementioned provisions in 5 usc 706. and therefore unlawful. it also argues the action puts i an illegal financial burden. >> this is a cost we will now have to take on the cost of additional immigrants that come here. it is the cost of what is already here when you turn around and you say you're not going to deport them. not deporting these citizens is going to cost the state money. >> it's not uncommon for states to sue the federal government over the laws it makes, but a lawsuit over an executive action or inaction is much more rare.
>> this time on the program we'll sort out what is substance and what is symbolism when you go after the president for executive action. what tools are available to a politically opposed house of representatives or state governors to try to stop the president from taking executive action on immigration? can they go directly after the president's action itself? to drop certain illegally illegal residents. or gum up of th up the works of the government to show their d displeasure. we go to our panel. professor frost, is suing the president of the united states while he is in office just like
suing any other citizen? >> they're suing the president's executive officers who will carry out his executive order. they're suing the heads of agencies. as well as the united states itself. so obama isn't actually named in the suit, but of course the suit is about their deep opposition to his policy, his unilateral policy on immigration. >> from the perch of a state, is it a simple matter to go after the department--the secretary of homeland security, one of the officials named, jay johnson. does he have to show up to respond? >> well, they're used to being named in lawsuits and there are lawyers in the department of justice who will defend them. but it's difficult for the states to prevail. they have to show that they've suffered a concrete and specific injury. and nicky hayley, in the click you just showed, was trying to make that argument. but that's going to be a pretty difficult argument for the
states to make. they have to show that they're specifically injured by this executive order, and that the courts' order in their favor would address that injury. >> do you agree there is a standing problem? >> i don't agree there is a standing problem. six years ago or eight years ago now the supreme court in a case called massachusetts versus epa recognized that a state has standing on quite frankly flipsier claims of potential harm than the 17 states have argued here. in that case the supreme court said massachusetts could force epa to issue rules dealing with global warming because at some point massachusetts feared the tides might rise and harm its citizens. the harm that has been alleged in texas h ' suit is much more immediate. >> we heard nicky haley talking about added costs. certainly any governor of south
carolina would be worried about that, but it wasn't clear what added costs you were talking about. if the law --the rule making pronounced last no spoke of people who were already here for five years. >> here is the main cost. the president's action not only defer deportation but gave a lawful presence in the united states and also work authorization to nearly 4 million people. that's going to swamp the employment markets, have a direct effect on employment rates in several states. that's a harm that the states can bring and address on behalf of their citizens. >> professor, does a soon to be governor abbott or nicky haley
herself have to demonstrate that harm, or do they have to allege it. >> no, they definitely have to demonstrate it, and the principle argument that they make is that this is likely to superior a crisis in illegal immigration. the problem that they have is that is a difficult showing to make because the evidence is to the contrary. they suggest, for example, that doca, announced in 2012, is the cause of the sudden surge in unaccompanied central american children that we experienced briefly this past summer, but the u.n. has done an exhaustive study of that, and the reason why these children were coming had much more to do with fleeing violence, fleeing lack of economic opportunities, seeking to be reunited with parents, etc. and almost none of these kids have ever even heard of doca. in addition to that, if they had heard of it, doca would not have
helped them because it effected people who were already in the united states for several years. the relationship between doca and the spur of children coming is non-showing. >> will there have to be full comprehend of five-year date certain to be eligible to be covered by this policy. >> i disagree on the fact and the law on the prior statements. so look, whether the individual doca arrivals knew they were coming here because of doca or rather the folks that had hut in place the mechanisms to bring them here, and the advertising that was going on in mexico and central america saying that the united states is open for illegal immigration. if you get there just tell them you're surrendering, and they'll let you stay. but it begs the question as well.
the harms here are texas is alleged and includes the harms to their employment base. we're talking about adding 4 million new people to the employment rolls who are not authorized to work in this country on the laws on the books. that will have a debilitating effect on the states involved in the institute. i don't see any problem with this case getting over the standing hurdle. there may be some other issues to the merit of the case but i don't see any problem whatsoever given the standing hurdle give that supreme court precedence. >> one thing i want to say, you're right about massachusetts versus epa, but in this case the epa conceded there was a causal connection between greenhouse gasses and climate change. once they conceded that there was admission if we don't
regulate greenhouse gasses it will affect the massachusetts coast line. but the think the bigger point to make here is that the reason that the supreme court and federal courts have this standing doctrine on the cases they'll here. they're not supposed to be courts advising us on general questions that are about our policies that we want to take as a country. i think that's where the debate needs to happen, and where it is happening, frankly. the public is debating how they feel about immigration. we see that in congress and we see the president joining in on that debate. i'm not sure that the courts are the best place to resolve this. >> they're talking about adding millions of people to the rolls. granted a lot of those people are already here. isn't there an inferred burden that the president is here
making not by legislation but by the stroke of his pen? >> you know, i do agree certain states, border states, for example, seem to bear the brunt of immigration and the cost of it more than others. again that's part of the conversation we need to have as a nation to redistribute the benefits of immigration of which there are many to make sure that those states bearing the costs are compensated, but i have to point out the following that obama said in his speech on this issue. these people are here anyway, nor are there the resources to remove them. congress has not provided the resources to remove over 11 million people. it has the legislation to remove 400,000 a year. in light of that reality these people are going no wear either with or without the executive order in place. >> you may have decided what the governor's are doing or what the house has done is just politics or a vital response to presidential overreach. when we come back we'll look at
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automatically safe, is not true >> every saturday, go where technology meets humanity... >> sharks like affection >> tech know, only on al jazeera america >> you're watching inside story on al jazeera america. i'm ray suarez. the house has passed a measure requiring the president to stop his executive action on immigration, saying it's again the law. republican governors have done much the same thing. the governor say the president is violating article 2 of the constitution, which requires him to enforce the laws of the land. and stephen, let's talk a little bit about that issue. because in recent years there has been a shoving match between the federal government and state governments over who enforces immigration law in this country. can governors sue the federal
government for failure or anything else involving federal law? >> well, i'm glad you asked the question in that way. i think there are two separate but related questions here. the main claim by the plaintiffs seems to be the president does not enforce the immigration laws. but if you look at the fact it's hard to see the basis for that charge. this president since day one has spent every penny congress has given him for immigration enforcement, and he has used that money to deport record numbers of immigrants already, and he still has two years to go. more important, more relevant here even after the programs that the president has just announced are fully operational, there will still remain in this country about 6 million to 7 million undocumented immigrants, and the president will still have the resources to go only after 400,000 of them. which means that nothing in the action that the president has just taken will prevent him from continue to go enforce the law
to the full extent that congress has given him the resources to do so. can i add a second point to that? people like to say that the president has failed to--the president has rewritten the law or has ignored the law or suspended it, etc. notable to me is what the plaintiffs didn't say in the complaint. nowhere do they cite a specific concrete provision of the immigration act or any statute that they claim that the president has violated because i i don't think there are any. congress by appropriating resources that it knows will be enough to go after the a small fraction of the population, remains clear that it expects is the administration to continue the prosecute tora orial dis discretion, and it is specifically named by
name, and recognized by decision by name, and none of those legal sources say or even remotely imply that there are some numerical limit of how many people can receive it or it's okay for a small group and not a large group. >> let me turn it at that point to professor eastman. that's some of what we're fighting about. instead of case by case, person by person, the executive can anoint a whole class of people because of their legal status as being effected by executive action. >> i disagree with the professor with almost every point. president obama has had the largest number of deportations. what happened truly was they redefined what a deportation was. they included people who were turned away from the border who never got into the united states as deported. if you exclude that and compare apples to apples, deportations
under in administration are down anywhere between 26% to 40% from the prior administration. the prior piece, there is exercise of prosecutorial discretion on a case by case basis. if a police officer, highway patrol officer out on a highway, if you're going a few miles over the speed limit he's probably not going to stop you and give you the ticket, but it does not give you the right to keep going in excess of the speed limit, and on any individual day he could give that you ticket. what the president has done is effectively suspended the law for an entire class of people who meet a criteria that he set out who do not set out in the law. even with that broad expansion of prosecutorial expansion, he went a step forward or rather his secretary of homeland security went a step forward and said we'll give lawful authorization for these people to work in the united states
contrary to the prohibition of their working here in the statutes. that's where the statute is violated. i don't find anything in the code that authorized that wholesale grant of work for the president who has decided not to remove a proceedings for, and give a lawful presence in the united states and a lawful work authorization. that's the real nub of this. >> i want to come back to deportations quickl, but quickly, professor frost, wasn't it decided that arizona can't have its own immigration policy in effect. does that weaken some of the effort of the states here to say to the president, make certain demands and requirements in the way that immigration laws are enforced? >> i don't think those are directly related. arizona was
saying--undocumented immigrants in our state are going to suffer more penalties more than what our federal immigration law provided. i think that's a different question whether states can pile on or add on more to our fellow immigration laws. here the states to be fair to what they're saying, they are a saying that the u.s. government has violated through its executive orders executive law. they're not going further than that. >> are the stats you cited, counting people who didn't actually enter the united states but were interdicted and sent back to other countries. >> if they do clue those include those. but it's much more efficient to turn people back at the border than to wait until they've entered and try to find them many years later. but i can also correct a couple of legal misstatements that professor eastman has said.
he said there is no authorization in the law that grant work permits to people who are not here lawfully. the statute itself authorizes the attorney general to grant work permits. it doesn't place hims on the number of people who get them. and secondly the formal regulations specifically say that people who receive deferred action, and those are people who are here unlawfully may receive work authorization. >> when we come back, more on the efforts of congressional republicans and governors in 17 states to turn back the president's attempts to make immigration policy through executive action. stay with us.
can congress gum up the works? can they simply stop the obama administration from carrying out the policies set forth in his executive action? >> well, they can. they can pass laws even be more clear, mandating that the president enforce these laws in ways he's not doing now. they can cut off appropriations to the agencies that are implementing the president's new policies and prohibit any use of appropriated funds for that purpose. and quite frankly, if the president is deliberately suspending the laws, one of the reasons to take care clause is in the constitution is to counter act th and suspense the laws when he didn't like them. that would be grounds for political impeachment proceedings if the congress thought that they had the political will to proceed in that fashion. i don't think that will is there yet. but what the president has done is awfully tempting for congress to utilize any of those tools. >> what do you think, professor?
>> i disagree strongly. it's very easy to keep saying the president has suspended the laws, but if you're going to make that stick you have to identify the laws he has violated, and no one has done that. both the d dca memo and the new memo said that the officers on the grouped are specifically instructed to use individualized discretion in the facts of each individual case. >> it does use the phrase case by case. it's platitude because the directions to the line officers are nevertheless, if the they meet these criteria, you shall not investigate them for removal in the first place. you shall drop
them-- >> professor eastman, let me jump in there. if you make an individual application, and you have to prove as an individual that you meet criteria, it is case by case, isn't it? >> no, no. that's not case by case. case by case is if--when they're setting out is criteria. if you meet the criteria, you get to the deferred action. that's not case by case discretion. that's changing the rules of who is eligible to stay in the country or not. that's the difference in prosecutorial discretion. that does not confront the issue of work authorization. and i disagree with the proffer on that as well. it is not. they're taking four words in the statute and going much beyond what those words possibly could support. >> by carving out an exception in the law for a certain bunch of people you're regularizing their status, aren't you? >> you're not-- >> professor frost go i was just going to say the president is pretty clear in all that he
could do is give them a three-year permission to stay in the united states without being removed. but i just want to make point about the bigger--just to complete that thought. just the idea that the president has not actually given them legal immigration status and does not claim to have go but do they have implied status because they're not deportable. >> it could be changed at any moment. it's not the same as having legal immigration status where one is protected, but i do agree with professor eastman there is a category of people who have been treated now differently. the question is how is that different from how that happened before? that same category of people was never going to be deported because we never had the funds to do so. >> professors, thank you all. very interesting conversations. this bring us to the end of this edition of inside story. from washington, i'm ray suarez.