The opposition by Republican leaders to anticipated executive action to grant temporary relief from deportation to millions of unauthorized is continuing in the form of threats to sue President Obama for allegedly exceeding his constitutional authority.

This threat has been made not only by House Speaker John Boehner (R-Ohio), who seems to be having difficulty finding a law firm willing to take his case on, as mentioned in my previous post, but also by House Judiciary Committee Chairman Bob Goodlatte (R-Virginia), who, as a former immigration lawyer, should know better that there is no legal basis for any such action. See Seung Min Kim's POLITICO article: Republicans again jump on Obama and immigration (October 9).

Barack Obama is hardly the first president to use executive power to grant relief from deportation to certain classes of immigrants without specific Congressional authority to do so.

See: Reagan, Bush, also acted alone to shield immigrants (AP, November 15)

The main legal argument that has been put forth as a basis for executive action to grant relief from deportation is Prosecutorial Discretion. The history of this doctrine as applied to immigration enforcement is described in great detail in a September 3 letter to the President signed by no less than 100 law professors.

Without in any way disagreeing with these distinguished authorities on immigration law, I would also argue, as I have been doing in my recent posts, that executive power over immigration has older and deeper roots as well, going back to the "Plenary Power" doctrine embodied in Supreme Court decisions dating from the time of the infamous Chinese exclusion laws of the late 19th century.

I have mentioned three famous (or notorious) decisions, in particular, Chae Chan Ping v. U.S. (1889), Nishimura Ekiu v. U.S. (1892) and Fong Yue Ting v. U.S. (1893), as standing for the proposition that, in effect, there was no such thing as Constitutional rights for non-US citizens (especially if they happened to be from Asia rather than Europe) in immigration matters, because the two "political" branches of the government, Congress and the executive, had the unlimited right to decide which foreign citizens could come to or remain in the US, and under what conditions.

Based on those decisions, arguing that any action that either Congress or the president takes with regard to immigration is "unconstitutional" comes close to being an oxymoron.

There is one important exception to this, however. Under the Constitution, the president and executive branch derive their authority from Congress. If the president or executive takes action that is clearly forbidden by Congress or goes beyond authority granted by Congress, then that action would clearly be unconstitutional and contrary to law. Only in that instance would there be any possible basis for a lawsuit against the president over executive action concerning immigration.

As I have mentioned, the three above 19th century Supreme Court decisions, which despite their highly reprehensible and overt racial bias, especially as expressed in Chae and Fong, or more indirectly in Nishimura, (in which the Chinese exclusion laws were not involved, but excluding immigrants on the grounds of likelihood to become a public charge was used against Asians and other people of color more often than against Europeans, according to records dating from that time), are still the foundation of today's immigration laws,
make the "political" branches of the government supreme in terms of control over immigration, to the exclusion of the courts. But do these cases say anything about the relative powers of the two political branches with respect to each other?

The first of the three cases, Chae, has little to say about executive power authority over immigration, as the decision is concerned mainly with the power of Congress as opposed to that of the judiciary in this area. However, Nishimura, states the following as the basis for executive power over immigration:

"The supervision of the admission of aliens into the United States may be entrusted by Congress either to the Department of State, having the general management of foreign relations, or to the Department of the Treasury, charged with the enforcement of the laws regulating foreign commerce, and Congress has often passed acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the Secretary of the Treasury, to collectors of customs, and to inspectors acting under their authority."
(142 U.S. 651, 659, emphasis added).

The doctrine that Congress has entrusted broad power to enforce the immigration law to the executive branch is amplified in the majority opinion in Fong, which includes the following statements:

"The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene."
(149 U.S. at 713)

"The power of Congress, therefore, to expel, like the power to exclude aliens, or any specified class of aliens, may be exercised entirely through executive officers, or Congress may call in the aid of the judiciary to ascertain any contested facts on which the alien's right to be in the Country has been made by Congress to depend..."
(149 U.S. at 713-714, emphasis added)

"It is no new thing for the law-making power, acting either through treaties made by the President and Senate, or by the more common method of acts of Congress, to submit the decision of questions, not necessarily of judicial cognizance, either to the final determination of executive officers..."
(149 U.S. at 714, emphasis added)

With respect to the specific provision of the 1892 exclusion law requiring Chinese laborers then in the US to obtain a certificate of residence within one year of passage of the act upon showing proof of their residence, the court stated:

"What this proof shall be is not defined in the statute, but is committed to the supervision of the Secretary of the Treasury by section 7, which directs him to make such rules and regulations as may be necessary for the efficient execution of the act..."
(149 U.S. at 726, emphasis added)

The above citations show that the doctrine of broad executive power over immigration enforcement, without supervision by the courts, goes back to the beginning of America's entire system of control over immigration, starting with the most infamous period in our entire immigration history, namely the Chinese exclusion laws.

Absent specific limitations on immigration enforcement enacted by Congress, which have always been the exception rather than the rule, the only restraint on executive power over immigration, according to these above seminal cases, is "the paramount law of the Constitution".

What "paramount law" is there in the Constitution that prevents the "political" branches of the government, including the executive, from granting temporary relief from deportation to certain classes of immigrants?

If there is any law firm in Washington, or anywhere else, that knows of such a provision, Representatives Boehner and Goodlatte have evidently so far failed to find one.