Rep. Steve King on Immigration Lawsuit Against Obama: ‘I’m Not Bluffing’

July 2, 2012 - 1:11 PM

(CNSNews.com) – Rep. Steve King (R-Iowa) said he is “not bluffing” about filing a lawsuit against the Obama administration for its June 15 decision to immediately  “lift the shadow of deportation” and allow hundreds of thousands of illegal aliens between ages 16 and 30 to stay in the United States and apply for work permits.

In an interview with CNSNews.com, King criticized the president for what he considers an “unconstitutional overreach,” and added that the Constitution has been under “assault for several years now.”

“The Constitution does not grant the Executive that power [over immigration law], that power is specifically set aside under Article I of the Constitution, which creates and grants the authority to the United States Congress, the Legislative branch,” King said.

Article 1, Section 8, Clauses 4 and 18 of the U.S. Constitution say: “The Congress shall have the power … To establish an uniform Rule of Naturalization … [and] … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

In his June 15 declaration from the White House, President Obama said, “Effective immediately, the Department of Homeland Security is taking steps to lift the shadow of deportation from these young people.  Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.”

APTOPIX Obama Immigration

President Barack Obama responds as he is interrupted while announcing that his administration will stop deporting and begin granting work permits to younger illegal immigrants who came to the U.S. as children and have since led law-abiding lives, Friday, June 15, 2012, during a statement in the Rose Garden of the White House in Washington. (AP Photo/Susan Walsh)

The young people concerned can be between 16 and 30 years old and it is estimated that they potentially number about 800,000 in the United States.

Rep. King said, “That is a violation of the separation of powers. He has no authority to do that and our remedy is to go to court and ask for judicial relief for an injunction that would stop the president from enforcing and implementing this unconstitutional power that he has claimed by executive edict.”

King said he is consulting with legal experts to craft a lawsuit against the Obama administration.  “I’m preparing now to convene a meeting of those best minds around the table to determine who has the most conviction, who has the best insight, who most wants to move forward and then how we will fund it,” he said.

“By the end of next week [end of June] we’ll have a lot better idea on how quickly we might be able to file and who will be the attorney firm that will be handling it,” he said.

The Iowa Republican believes he has a strong case based upon his experience in successfully suing the chief executive of Iowa -- then-Gov. Tom Vilsack, the current secretary of Agriculture -- for issuing a non-discrimination policy by executive order in 1999.

“This is a very similar circumstance,” King said, “although it’s federal court now and it’s a higher bar.”

Rep. King, a member of the Immigration Policy and Enforcement subcommittee and the Constitution subcommittees in the House, said he was “stumped” as to what President Obama’s constitutional argument is for making work permits available to illegal aliens, even though Obama taught constitutional law at the University of Chicago School of Law in the 1990s.

“I know that he has given this lecture of separation of powers many times,” said King. “I was asked the question by Congressman Jim Jordan [R-Ohio] the other day, ‘What is the president’s constitutional argument?’ I was stumped.  I have no idea what his constitutional argument is. I think he’s just decided that he can reach for that power.”

Janet Napolitano

Homeland Security Secretary Janet Napolitano. (AP Photo/Manuel Balce Ceneta)

Obama and Homeland Security Secretary Janet Napolitano have argued that the immigration-action is justified through prosecutorial discretion: the federal government’s decision to prosecute a case on an individual basis, due to limited resources.

But, said King, “You can’t have prosecutorial discretion when you’re dealing with an entire class of people.”

On July 25, 2011 Obama told the National Council of La Raza that the idea of reforming the U.S. immigration system on his own by bypassing Congress was “very tempting” but “that's not how our system works.”

King said Obama “believes that no one will take him on, or take him to court, or that he doesn’t believe Congress has the will to block him. And so it’s -- he’s calling our bluff.”

“I’m not bluffing and I’m hoping that there will be a good number of members that will join me in this from the House and the Senate,” he said.

King said the only viable option to challenge the president is through the courts, given the current environment on Capitol Hill.

“This town is far too political,” he said.  “If you looked at the impeachment hearings of 1998 and we ended up with a political vote in the United States Senate -- and I’m not suggesting that I were to in this case -- but it taught me something about the political nature of the process here.”

“[Senate Majority Leader] Harry Reid blocks anything the president doesn’t want to see on his desk,” said King.

“We do not have a legislative remedy but we have taken an oath to uphold the Constitution,” he added.  “The remedy is to go through the courts and they can determine what the Constitution says, they can determine what the law says.”

“I am determined to do so and I’m confident that if we can get a court to hear this case on the merits, we’ll succeed,” he said.

Rep. Steve King

Rep. Steve King (R-Iowa) (CNSNews.com/Penny Starr)

The president’s directive on June 15 is a program that grants immunity to illegal immigrants who have continually resided in the U.S. for at least five years, and who have or are pursuing an education with no serious criminal records or threat to national security, under the age of 30.

Those eligible can apply for both a two-year period of “deferred action,” subject to renewal, and then work authorization.

The president said the policy is “not amnesty,” but a “a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.”

“If the president has the authority to create classes of people and exempt them from laws that are duly passed by the United States Congress and signed into law by a previous president,” King said, “that means everybody in the United States of America could be granted amnesty by the same authority that the president has claimed in this.”

“That’s an affront to our Constitution, our American history and it really does great damage to our American destiny,” said the congressman.

King said the president’s action “transcends” the DREAM Act, which would grant legal status to undocumented aliens who are in school or have served in the military.  Obama cited the legislation in his June 15 remarks as the source for his Administrative action.

Though he opposes Republican variations of the DREAM Act being offered by Florida Sen. Marco Rubio and Rep. David Rivera, King said the issue at hand is not immigration policy but the authorities granted in the Constitution. http://latino.foxnews.com/latino/politics/2012/06/13/gop-immigration-haw...

“I support legal immigration, and I have long supported legal immigration, I support the rule of law, I oppose amnesty,” King said.  “Those are the standards that I think the American people would ask all of us to uphold.”

“But this is a question that comes up,” he said.  “This is a constitutional issue now.  It transcends the immigration issue. It takes us into the constitutional realm.”

Obama is imposing DREAM Act legislation by “executive edict,” King said.  “This Congress can’t tolerate such a thing.  Our Founding Fathers envisioned that each branch of government would jealously protect the power that has been granted in the Constitution.”

“If we do not do s,o that power will be ceded over to the Executive branch and on different occasions over to the Judicial branch of government and Congress becomes a group of figureheads without any authority and no longer would be a government of, by and for the people,” said Rep. King.

A transcript of CNSNews.com’s interview with Rep. Steve King (R-Iowa) is published below:

CNSNews.com’s Elizabeth Harrington: “President Obama on Friday [June 15] announced that his administration is no longer going to be enforcing immigration law on young illegal aliens and also give them the opportunity to apply for work permits.  So, I just want to start out by asking, where specifically does the Constitution grant the executive branch the power to permit illegal aliens to work in the United States?”

Rep. Steve King (R-Iowa): “The Constitution does not grant the executive that power -- that power is specifically set aside under Article I of the Constitution, which creates and grants the authority to the United States Congress, the Legislative branch.  This is a classical clash between the powers -- the separation of powers between the legislative branch and the executive branch of government.  The president had already gone up to that line and perhaps gone over it when he was granting individual prosecutorial discretion, which is the equivalent of individual amnesty under the Morton memos that were issued perhaps a year ago.  I brought the amendment that nullified the Morton memos that passed out of the House of Representatives a couple of weeks ago -- that was already stepping into legislative territory.  But I didn’t declare it to be a constitutional crisis or a constitutional issue, it was a struggle between the legislature and the executive branch.  But this decision for the president of the United States to determine that he would take the components of what’s known as the DREAM Act, a bill which granted amnesty to several million young people that are in this country illegally, they came into this country and committed the crime of illegal entry into the United States, most of them not all of them entered in that way.  And that is a violation of the separation of powers, he has no authority to do that and our remedy is to go to court and ask for judicial relief for an injunction that would stop the President from enforcing and implementing this unconstitutional power that he has claimed by executive edict.”

CNSNews.com: “Right, so that lawsuit that you’re planning on bringing, what’s the status of that?  How soon do you think you can get that together and who do you hope will join you?”

Rep. King: “Well, I announced on the day that the president announced this unconstitutional overreach of granting amnesty, I announced that I would bring suit against the president.  I didn’t have to think about it very long because I have in my background a very similar incident where our chief executive officer of the state of Iowa, then-Governor Tom Vilsack, believed that he could legislate by -- in this case it was Executive Order.  Even though my Republican attorneys told me that I was wrong, that it was a carefully drafted executive order that was constitutionally sound, I read the language and I read the language that was in the code of Iowa and concluded that no, he had legislated by Executive Order, I announced within 48 hours that I would sue then-Governor Vilsack, the case of King v. Vilsack is in the books and I spent a lot of my own money to defend that, really my oath to the Constitution, to uphold that oath to the Constitution.  So I have been through the separation of powers arguments, I’ve litigated a very high-profile case in Iowa; this is a very similar circumstance, although it’s federal court now and it’s a higher bar.  But the future for this that we have been talking to the best legal minds that are available in the United States and I’m preparing now to convene a meeting of those best minds around the table to determine who has the most conviction, who has the best insight, who most wants to move forward and then how we will fund it.  By the end of next week we’ll have a lot better idea on how quickly we might be able to file and who will be the attorney firm that will be handling it.”

CNSNews.com: “Last year the president was speaking about deportation and he said, ‘As much as I’m tempted to bypass Congress … that’s not how our system works.’  A year later, it would seem he’s going against that statement.  Why do you think this is happening now?”

Rep. King: “You know, I’ve watched three tapes of the president explaining the separation of powers and the constitutional authority of the executive versus the legislative versus the judicial branch.  He taught Constitutional Law as an adjunct professor at the University of Chicago School of Law.  I know that he has given this lecture of separation of powers many times.  You can tell by listening to the lecture that he gave a year ago last March 28 at the Bell School here in D.C. as an example.  I was asked the question by Congressman Jim Jordan [R-Ohio] the other day, ‘What is the President’s constitutional argument?’  I was stumped.  I have no idea what his constitutional argument is. I think he’s just decided that he can reach for that power.  He believes that no one will take him on, or take him to court, or that he doesn’t believe Congress has the will to block him.  And so it’s -- he’s calling our bluff, I’m not bluffing and I’m hoping that there will be a good number of members that will join me in this from the House and the Senate.”

CNSNews.com: “Some Democrats and the people that are arguing that he does have this authority, if he does have that authority, why doesn’t he just -- could he not just unilaterally grant legal status to all illegal aliens?  Why doesn’t he do that?”

Rep. King: “That would be his implied assertion that he has the authority to grant amnesty to anybody in the United States that he would see fit to grant amnesty to and to create classes of people, groups of people. And so, if he can do so for people that are under 30 that came in here before they were 16, for example, then why can’t that be people that came in before they were 20 or  25, or 30, or 50?  You just expand the universe of the classes he’s created.  He’s also directed U.S. CIS, Citizen Immigration Services, to create a work permit to grant status that allows people that are in the United States illegally to work in the United States.  And that’s a number between, we think now, 800,000 people and 1.4 million people.  We know from experience that the ‘86 amnesty act was to be 1 million and by the time you added the fraud to it, it grew to 3 million people.  This will be one of those things as well.  You can’t do background checks on people that don’t have a legal existence in their home country and the standards here are very low and the president has directed in [Homeland Security Secretary] Janet Napolitano to argue that this is prosecutorial discretion.  You can’t have prosecutorial discretion when you’re dealing with an entire class of people.  They have argued that they need to handle this on an individual basis, that’s preparing for their legal argument, but the amnesty act of ‘86 was dealt with on a legal, on an individual basis.  So these are distinctions without a difference and Congress has to assert its constitutional authority.  If we fail to defend our constitutional authority there’s not a lot left of the legislative branch of government.”

CNSNews.com: “How does Congress do that?  Through your lawsuit or what other steps could Congress take to challenge this move?”

Rep. King: “Well, I immediately drew a conclusion that it would be hard to see the kind of energy necessary within the House of Representatives, let alone the Senate, to drive this thing through and face a veto from the president of the United States and overcome the veto.  This town is far too political, if you looked at the impeachment hearings of 1998 and we ended up with a political vote in the United States Senate -- and I’m not suggesting that I were to in this case -- but it taught me something about the political nature of the process here.  [Senate Majority Leader] Harry Reid blocks anything the president doesn’t want to see on his desk. We do not have a legislative remedy but we have taken an oath to uphold the Constitution: the remedy is to go through the courts and they can determine what the Constitution says, they can determine what the law says.  I am determined to do so and I’m confident that if we can get a court to hear this case on the merits we’ll succeed.”

CNSNews.com: “You mentioned the DREAM Act and this is more of an administrative way to get that through.  You oppose the Republican versions.  Senator Marco Rubio [R-Fla.] is working on one.  Why do you oppose some of these bills and do you think there’s a divide in the Republican Party over how to deal or how to assess the illegal immigrants that are already in this country?”

Rep. King: “I support legal immigration, and I have long supported legal immigration, I support the rule of law, I oppose amnesty.  Those are the standards that I think the American people would ask all of us to uphold.  But this is a question that comes up.  This is a constitutional issue now.  It transcends the immigration issue.  It takes us into the constitutional realm.  And you will hear me focus on constitutional issues; they animate me more than immigration issues do.  I’ve served on the Immigration subcommittee here in the House Judiciary Committee for, this is my tenth year, also on the Constitutional subcommittee for 10 years.  When I have engaged through the immigration process it’s been about the Constitution and the separation of powers.  I’ve actually done that twice in the past, and so that’s where you’ll see me go with this.  This is where Congress needs to go, assert its constitutional authority -- exclusive authority to legislate -- and if the president has the authority to create classes of people and exempt them from laws that are duly passed by the United States Congress and signed into law by a previous president, if he can exempt, as we talked about, different ages of people could be exempted, that means everybody in the United States of America could be granted amnesty by the same authority that the president has claimed in this.  That’s an affront to our Constitution, our American history, and it really does great damage to our American destiny.

Rep. Steve King: But if the president has that authority, then can’t he also assert the same authority when it comes to tax collection and audits?  Can’t he tell [Treasury Secretary] Tim Geithner, ‘Well let’s not audit people who are in the 10 percent bracket then that way we’ll do a little more wealth transfer’?  Under the same rational he could raise the debt ceiling without congressional authority to do so.  And what is our remedy to stop that?  It goes on and on and on the things that the president can do.  He could step into any of the enumerated powers and claim them as executive authority.  This is a constitutional crisis and it has somewhat been buried underneath the shadow of Fast and Furious and the impending decision to come out on the Supreme Court on Obamacare.  But I want to remind the listeners this, that this Constitution has been directly under assault for several years now, that the legislation of Obamacare itself with the individual mandate stands on one argument that the Commerce Clause, which is an enumerated power, is so broad that it includes people who never use health care, let alone health insurance, non-participation just breathing American air puts you into the Commerce Clause and that lets Congress then regulate aspects of our lives that they choose.  If the Commerce Clause is that broad, it swallows up all of the other enumerated powers.  And if Arizona’s immigration law is unconstitutional because the White House has changed a policy on to enforce the law, then the president can at any time nullify any of the state laws and then the 9th and 10th Amendment are swallowed by that assertion.  If the president can by executive edict manufacture laws, not out of whole cloth but out of thin air, and that’s the case with this order on the DREAM Act components, even though Congress has rejected this DREAM Act in the 109th Congress, the 110th, the 111th and the 112th Congress, Congress said no over a span of eight different years and the president with his ‘audacity,’ which I think is his favorite word, has decided he’s going to legislate by executive edict, this Congress can’t tolerate such a thing. Our Founding Fathers envisioned that each branch of government would jealously protect the power that has been granted in the Constitution, if we do not do so that power will be ceded over to the executive branch and on different occasions over to the Judicial Branch of government and Congress becomes a group of figureheads without any authority and no longer would be a government of, by and for the people.”