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Gov't Report: Congress and the States Will Have a Tough Time Challenging Obama's Immigration Action in Court

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President Barack Obama addresses the crowd on issues surrounding the protests in Ferguson, Mo., after meeting with community leaders about the executive actions he is taking to fix the immigration system Tuesday, Nov. 25, 2014, in Chicago. (AP Photo/Charles Rex Arbogast)

Members of Congress and individual states will likely have a difficult time proving their legal standing to take on President Barack Obama’s unilateral actions on immigration, a Congressional Research Service report concluded. But, an individual who could demonstrate economic harm might be able to challenge the legality of Obama bypassing Congress.

Members of Congress have talked about a lawsuit to challenge Obama’s executive actions, which could shield as many as 5 million illegal immigrants from deportation. Meanwhile, the governors of Indiana, Texas and Wisconsin have suggested they might bring state lawsuits against the federal government.

President Barack Obama addresses the crowd on issues surrounding the protests in Ferguson, Mo., after meeting with community leaders about the executive actions he is taking to fix the immigration system Tuesday, Nov. 25, 2014, in Chicago. (AP Photo/Charles Rex Arbogast) AP

Part of the executive actions will be providing work permits to illegals, and there is recent precedent for individuals, or “economic competitors,” to mount a legal challenge, the CRS report said, citing the 2014 case of Mendoza v. Perez.

“An argument has recently been advanced that U.S. workers whose wages or working conditions are adversely affected by increased competition from aliens permitted to work in the United States could show ‘competitor standing’ and, thus, challenge the Obama administration’s actions,” the analysis said. “This argument is, in part, based on a June 2014 decision wherein the U.S. Court of Appeals for the District of Columbia Circuit found that U.S. persons working as herders had standing to challenge the [Department of Labor's] decision to issue certain guidance as to the wages and hours of foreign herders without notice-and-comment rulemaking because DOL’s action caused ‘increased competition for jobs in their industry.’”

But the report said even this is far from certain, because the legality of Obama’s actions are based on the Immigration and Nationality Act, while the Mendoza v. Perez case concerned the Department of Labor.

“Regardless of the specifics of individual cases, standing requirements seem likely to pose a significant barrier for any legal challenge,” the report says.

The barrier is overcome first if a plaintiff can show injury; second, if they can show that the injury is traceable to the challenged action of the defendant, and finally, that the injury would be addressed by a decision favorable to the plaintiff, the report outlined.

Congress might need to establish a case of “institutional injury” to bring a case as a body, in a separation of powers argument, or “personal injury” for a member to sue, such as losing his or her seat because of the action.

“Individual Members of Congress are generally seen to lack standing to challenge executive actions,” the report said.

The House Judiciary Committee is holding a hearing Tuesday on the constitutionality of Obama taking the immigration actions without Congress.

If Indiana, Texas, Wisconsin or any other state seeks litigation against the federal government, it would mostly likely be based on the additional costs added to the state.

“In several prior cases, states sought to challenge the federal government’s alleged failure to enforce immigration law on the grounds that this ‘failure’ imposes costs upon the states, which must provide public benefits and services to aliens who, under this argument, would not have been present within the state had the federal government enforced the INA,” the report said. “Some of these challenges have been rejected on standing grounds.”

“In other cases, the court either ‘presumed’ or did not address the standing requirements, but found that states’ challenges presented a nonjusticiable political question,” the report continued. “The political question doctrine embodies the notion that courts should refrain from deciding questions that the Constitution has entrusted to other branches of government.”

The report more clearly rejected standing for taxpayers suing to force the enforcement of the law, and said that federal employees would also lack standing to force enforcement, citing a case where an Immigration and Customs Enforcement official sued the administration over the 2012 Deferred Action on Childhood Arrivals executive action. A district court rejected the case over standing.

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