Legal immigrants, other groups have standing to challenge Obama’s unconstitutional immigration action

Legal immigrants, other groups have standing to challenge Obama’s unconstitutional immigration action

Some legal scholars have suggested that even if President Obama’s recent immigration action is unconstitutional or illegal, no one has legal standing to challenge it. But in reality, several types of people do have standing to challenge it (possibly including several legal immigrants in my family).

For example, many legal immigrants have standing, because it will injure them by delaying their receipt of immigration papers needed for them to access important benefits, opportunities, and freedoms. President Obama’s action will result in further delays in processing legal immigration visas and green cards, since it will trigger hundreds of thousands if not millions of applications by illegal immigrants seeking a work permit and the right to stay in the U.S., which may temporarily overwhelm the immigration bureaucracy.  Even if that is not so, it will massively increase the backlog of immigration-related applications, forcing legal immigrants to wait additional months or years for their applications to be processed.  One of my relatives, a Korean immigrant, can’t get her state driver’s license renewed because, even though she is a longtime legal permanent resident, her antique permanent residence card isn’t recognized for drivers’ license purposes. So she was told that she would first have to get a new permanent resident card, which will require her to pay at least $450 to the federal government in application fees, and wait at least ten months for her permanent resident card to be reissued, before she can obtain her state drivers’ license. And that was even before Obama’s action started getting implemented and producing additional delays for legal immigrants.

As Katie Pavlich notes at Townhall,

When illegal immigrants are prioritized by the federal government and given a spot at the front of the line, millions of individuals going through the proper legal channels to become American citizens or to obtain visas are pushed even farther back in the process and given longer waiting periods. In most situations, this means legal immigrants spending longer periods of time away from their families.

My colleague Conn Carroll reminded us of the numbers and harsh reality of executive action has on legal immigrants last week: “At current staffing levels, USCIS issues about 1 million green cards per year. And when Obama enacted his first executive amnesty, the Deferred Action for Childhood Arrivals [DACA] in 2012, wait times for legal immigrants to get their visas tripled from under five months to over 15 months. “Only about 1 million illegal immigrants were eligible to apply for DACA amnesty and only about 600,000 were given amnesty. Obama’s next amnesty, however, will reportedly allow up to 5 million illegal immigrants to apply and no one knows how many will take him up on the offer. But assuming the turnout for Obama’s next amnesty is bigger than DACA, we can safely assume that legal immigration delays will get much much worse.”

The New York Times published an extensive piece in February detailing the consequences of prioritizing illegal immigrants before individuals engaged in the legal process:  “Many thousands of Americans seeking green cards for foreign spouses or other immediate relatives have been separated from them for a year or more because of swelling bureaucratic delays at a federal immigration agency in recent months. The long waits came when the agency, Citizenship and Immigration Services, shifted attention and resources to a program President Obama started in 2012 to give deportation deferrals to young undocumented immigrants, according to administration officials and official data. The trouble that American citizens have faced gaining permanent resident visas for their families raises questions about the agency’s priorities and its readiness to handle what could become a far bigger task.” [Emphasis added]

With his recently announced amnesty plan, President Obama has given USCIS the “far bigger task” previously warned about and has made the system more unfair, not less. It’s unfortunate President Obama’s focus isn’t on prioritizing the people who want to do things legally or on reforming the legal immigration system before rewarding millions of individuals for breaking the law by putting them at the front of the line.

Obama’s executive action will likely drain the immigration system of resources needed to process the applications of legal immigrants. His earlier DACA executive order charged illegal immigrant applicants so little – essentially the same amount as what my legal immigrant relative will have to pay just to get a new green card, and not enough to cover the additional cost of verifying any of the many claims in the illegal immigrants’ applications — that it drained agency resources needed to process legal immigrants’ greencards or visas. The same will likely also be true of his most recent executive action expanding his de facto amnesty for illegal immigrants. (Illegal immigrants who applied for Obama’s earlier DACA amnesty were not charged not enough to cover the cost of both processing the applications and verifying the information contained in the applications, which was never verified as a result, like false claims that applicants had high-school diplomas, which many in fact did not have, though 99% of applications were granted).

Another category of people also logically have standing to challenge Obama’s illegal immigration action: people who apply for a job but lose out to an illegal immigrant granted a work permit by the Obama administration. They would  have standing, even absent proof of but-for causation. See Northeast Florida Chapter of Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993) (white contractor need not show he would have received the contract but for a racial set aside to challenge it, and could sue regardless of whether he could show that he would have received a government contract in the absence of racial preferences in contracting). It is enough for them to show that they had to compete for a job on slightly less advantageous footing than before.

Indeed, such people also have standing if they simply allege that they would apply for a job if not for the unwanted competition due to the granting of the work permits to illegal immigrants.  See court rulings such as Committee for Effective Cellular Rules v. FCC, 53 F.3d 1309, 1316 (D.C. Cir. 1995) (“Although no members of the Committee have yet filed applications for unserved areas, several have submitted affidavits stating their intention to do so if the Commission recreates the 39 dBu contour for CGSA’s,” improving their ability to compete; this “constitutes sufficient economic injury” to challenge a federal agency’s rules under the Administrative Procedure Act) and see also the Supreme Court’s decision in Gratz v. Bollinger, 123 S.Ct. 2411 (2003) (finding standing to challenge race-conscious transfer admissions process at university based on the fact “that  [plaintiff] `intends to transfer to the University of Michigan when defendants cease the use of race as an admissions preference'”).

Moreover, where a federal action impacts the ability to obtain a benefit at the state level (like a state driver’s license), affected people have standing to challenge the federal action.  See Tozzi v. U.S. Dept. of Health & Human Services, 271 F.3d 301, 307-08 (D.C. Cir. 2001).

My wife, a legal immigrant, is also appalled by Obama’s recent immigration action, and views it as hallmark of an imperial presidency and “dictatorship” (to use her words; she minored in law in her home country, but is not a lawyer). I earlier discussed the legal problems with the President’s action at this link, which also discussed how Obama’s action will expand the welfare state and cost taxpayers billions of dollars annually.

A new report by the Center for Immigration Studies describes the illegality of the president’s “deferred-action” program (going beyond what I previously said).  That program was announced in a series of memos last month from the Department of Homeland Security that would “allow an estimated four million illegal aliens to request a three-year deferral of removal and receive employment authorization. This builds on the president’s earlier grant of amnesty-by-fiat in the Deferred Action for Childhood Arrivals (DACA) program.   The report, authored by Temple University law professor Jan Ting, examines, and rejects, the three separate assertions of authority used to justify the program:

  • Prosecutorial discretion: Ordering ICE agents not to inspect and place into removal proceedings illegal aliens they encounter violates 8 U.S.C. § 1225, which expressly curtails the president’s discretion concerning inspection and detention of aliens not lawfully admitted to the United States.
  • Advance parole: Granting “advance parole” to deferred action recipients so that they may travel back and forth between the United States and their native countries violates 8 U.S.C § 1182(d)(5), amended in 1996 specifically to prevent the use of parole to “admit aliens who do not qualify for admission under established legal immigration categories.”
  • Employment authorization: Granting Employment Authorization Documents (EADs) to millions of illegal aliens ignores nearly a century of case law, including Supreme Court decisions, holding that the Executive Branch may not circumvent the statutory employment-based visa system by opening the labor market to aliens not eligible for such visas, thereby defeating “Congress’ purpose of protecting American laborers from an influx of skilled and unskilled labor.”

As CIS notes “Taken together, the three illegal elements of Obama’s executive amnesty plan amount to a usurpation of Congress’s exclusive constitutional authority to formulate immigration policy.” The entire report can be viewed here.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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