On Monday, a federal court called a temporary halt to President Barack Obama’s plan to grant legal status to millions of foreign nationals who are now unlawfully present in the United States.

That plan, the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program, directs immigration officials not to deport some estimated four million people, who meet certain criteria set forth in a memorandum issued by Homeland Security Secretary Jeh Johnson. The administration was going to start implementing the program on Wednesday, and the state of Texas and 25 other states and governors (including Gov. Paul LePage) sued to block it.

Judge Andrew Hanen’s ruling doesn’t provide a final decision on the merits of the case, and the administration already has announced plans to appeal, so it is only a first step in what looks to be a long legal battle. Even so, it is already apparent that the litigation raises two profoundly important constitutional questions:

• Is this dispute about immigration policy the sort of thing that should be settled in court, or should it be left to the give and take of politics?

• What is the difference between enforcing an old law in a new way (which the president and cabinet secretaries clearly have the right to do) and making new law without the consent of Congress (which they are forbidden to do)?

Normally, the courts will get involved only where one person’s action has injured, or is about to injure, another person, and the court can do something to prevent or remedy the harm. It is not immediately obvious that the legal dispute about Obama’s immigration plan fits that model. Texas argued — and Judge Hanen agreed — that the program will impose new financial burdens on the state, such as the cost of issuing thousands of new drivers’ licenses to its beneficiaries, which it would not have to bear, if the court halted the program.

There is some merit to that argument. At another level, however, this lawsuit seems like just another front in the political fight over immigration. It is no accident that Rick Perry, who as the governor of Texas initiated the lawsuit, is a Republican.

In that political battle, state governors are at a disadvantage, because the Supreme Court has made clear that immigration policy is to be set in Washington, D.C., not the states. But the Republicans who now control the Congress have many ways of influencing the president: the Senate may refuse to confirm executive branch officials, committees in both houses may investigate the executive branch, and Congress can refuse to approve spending the president desires. And, in addition to those more conventional means of influence, the Constitution gives Congress the power to impeach and remove a president.

The argument against leaving disputes such as this one to politics is that the old political levers are not very effective in the today’s partisan environment, leaving presidents effectively free from any accountability. On the other hand, the courts may not be able to resolve politically charged controversies without appearing partisan themselves.

The question about executive discretion, fortunately, is a little clearer. We elect presidents and governors precisely because enforcing the law involves a degree of policymaking. Where resources are limited, to enforce one law rigorously may mean not enforcing another.

Thus DHS Secretary Johnson argues that if his office is going to have the resources to stop felons and terrorists from getting into our country, it won’t be able to find and deport the four million or so people eligible for Obama’s program.

If Obama’s plan went no further than this, it would be simple to defend it as an exercise of executive discretion. But the program doesn’t just say that certain persons will not be deported. Beneficiaries will have temporary legal presence in this country, with the right to work, to drive, to get a Social Security number and to travel freely. No law enacted by Congress authorizes the president to grant these benefits.

That’s why Judge Hanen concluded that the states have a good chance of winning if the courts do ultimately decide the case and why he ordered the administration not to proceed with DAPA until all the legal challenges get resolved.

The courts may finish their work first, but the only real resolution to this issue will have to come from politics: either by electing a president who will faithfully execute our current immigration law or a Congress that will vote to change it.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.


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