Freedom Line Blog

Last week Kansas Secretary of State Kris Kobach filed a lawsuit on behalf of 10 Immigration and Customs Enforcement agents challenging President Barack Obama’s “deferred action” program.

In a recent column I explained how the President’s decision to instruct federal law enforcement not to enforce relevant immigration law is giving some state governments an excuse to further legitimize illegal immigration.

Now the Heritage Foundation is out with an issue brief analyzing the prospects of the ICE agents’ lawsuit.  It doesn’t look good:

The plaintiffs will have a tough row to hoe, regardless of how abusive this new initiative may be in terms of violating the spirit—if not the letter—of the Constitution’s separation of powers, as well as the executive’s obligation to “take Care that the Laws be faithfully executed.” Although the challenge is by no means frivolous, a court may be reluctant to conclude that the plaintiffs have standing.

Even if they are able to establish an “injury in fact,” a court may be tempted to cite prudential standing rules in order to avoid reaching the merits, and to avoid encouraging federal officials to defy orders of their supervisors as a prelude to challenging the legality of those orders in court. As the Supreme Court stated in Gladstone, Realtors v. Village of Bellwood (1979), “a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.”

Key Takeaway: This is a political issue that requires a well thought out policy solution.  Paul Ryan dedicated his career thus far to making the conservative case for budget and entitlement reform.  It’s time for another enterprising Member of Congress to do the same with immigration reform.