The most telling indictment of the president’s unilateral action comes from the Office of Legal Counsel’s memo. Liberal apologists for the White House citing the memo as justification of the president’s action should read it and compare it to the president’s explanation of what is actually going to occur. Conservative legal gurus have been scouring the memo and have uncovered some interesting trip wires which the president failed to sidestep.

The OLC memo recognizes that under the guise of prosecutorial discretion the executive cannot enact broad legislative edicts (“a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion”). It finds the action legal insofar that it “provides for case-by-case determinations about whether an individual alien’s circumstances warrant the expenditure of removal resources, employing a broad standard that leaves ample room for the exercise of individualized discretion by responsible officials.” Oops. That is precisely what is NOT going on here.

A further hint that the administration strayed into the danger zone comes in footnote 8:

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Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria.

But did the president do this? No. (No wonder the advice was oral.) In his speech he told the country: “If you’ve been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is.”

As lawyer Josh Blackman argues, “[T]he OLC memo makes a very strong effort at crafting a line between prosecutorial discretion and abuse of discretion. While there are many citations to Heckler v. Chaney, the argument boils down to this point: when deferrals must be made on a case-by-case basis, this does not amount to an abdication of enforcing the law, and a transformation into rewriting the law.” The president is doing what the OLC and Heckler said he could not, “A decision not to enforce the deportation law against roughly half the nation’s illegal-immigrant population looks like an abdication to us and would seem so to a Court faithfully applying Heckler.”

The decision to exempt millions of people from deportation of course only works if there is a certain, across the board rule. Otherwise who would come forward and risk deportation? The certainty they require is what Heckler says the executive cannot provide.

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One fruitful exercise of congressional inquiry should be then to determine what individualized consideration is going on here and which people who fit within the categories are not receiving delayed deportation. If everyone in the broad category gets approved then it is not a case-by-case examination and by the OLC’s own admission could not be legal. This inquiry would be a service to the public, but also provide the factual basis for challenging the action in court.

On that front, states may be in the best position to challenge the president in court. John Yoo and Robert Delahunty write:

States, especially those along the nation’s borders, will expend more money and resources on the illegal aliens in their jurisdictions. They will have to spend more on police and social services, such as education and health care. Just as Massachusetts could sue to force the Bush administration to enforce its preferred understanding of the Clean Air Act, so states today should be able to sue to force the Obama administration to enforce the immigration laws. In the 1990s, the state of California sued the Clinton administration for failing to enforce the immigration laws under a similar theory. While the case never made it to the Supreme Court, the lower courts did not reject the case for lack of standing (though they did dismiss it because California founded its case on the U.S.’s responsibility to protect the states from invasion).

States attorneys general should get cracking on their lawsuits, but that should not stop Congress from acting. In discrete funding riders, it can do its best to disassociate itself from the president’s actions, making it that much clearer that this is not presidential discretion in enforcing the laws but executive defiance of the laws. Together with censure, the Congress can make a powerful statement the president has overstepped.

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Ultimately, just as in Obamacare, the real remedy is at the ballot box. Democratic lawmakers who support this farce will face the voters and the presidential race can determine whether we want a president whose views of executive discretion are so broad as to defy Congress and create edicts that substitute  for legisation. In essence, the Republicans should run on retract (the executive action) and replace with common sense, step-by-step immigration reform. Really, the most important thing is that we never elect another president who imagines he or she has such unbridled power. And most critically, Republicans must show they can govern on immigration and a host of other issues both effectively and constitutionally.

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