February 5, 2015

February 5, 2015 | Commentary on Immigration, Legal Issues

Hitting the Ground Running

Just weeks into his tenure as Nevada’s new Republican attorney general, Adam Laxalt has boldly joined 25 other state attorneys general in a lawsuit claiming that President Obama’s immigration plan is both unconstitutional and a violation of federal law. Laxalt’s decision to join the lawsuit flies in the face of opposition from the state’s popular Republican governor, Brian Sandoval. But under Nevada law, Laxalt needs neither Sandoval’s approval nor his permission, and Sandoval’s criticism of the legal action seems short-sighted.

Nevada law gives Laxalt wide latitude to determine the state’s best interests in filing or joining lawsuits. Under Article 5, Section 22 of the Nevada Constitution, the duties of the attorney general are those “as may be prescribed by law.” The state legislature has prescribed that “[w]henever the Governor directs or when, in the opinion of the Attorney General, to protect and secure the interest of the State it is necessary that a suit be commenced or defended in any federal or state court, the Attorney General shall commence the action or make the defense” (NRS 228.170).

Obviously, Laxalt believes that the lawsuit is necessary, as do the attorneys general — and in some instances the governors — of all of the other states that have sued the administration over the huge, increased costs they are going to incur in law enforcement, health care, and public education when 5 million illegal aliens are, in essence, granted amnesty. In fact, Nevada’s addition means a majority of the states are now suing the federal government.

Sandoval’s spokesman, Mari St. Martin, said that the governor “believes our immigration system is broken and it is without question that comprehensive reform is necessary,” but that he also “continues to believe that the best course of action is a legislative solution rather than legal action.”

The problem is that President Obama hasn’t waited for a “legislative solution.” Under Article I, Section 8 of the U.S. Constitution, Congress, not the president, has exclusive authority to “establish an uniform Rule of Naturalization.” Obama himself said on numerous occasions that he lacked the authority to do what he then went ahead and did on November 20, 2014, when he announced his new policy. And his unconstitutional use of executive authority can only be prevented through a lawsuit, or through Congressional action defunding the Department of Homeland Security, the agency in charge of implementing the president’s plan.

The debate over defunding DHS is ongoing in Congress, but the states have no control over its outcome. What they can do is what more than half of them now have done: file a lawsuit, and convince a court to issue an injunction against the president’s unilateral, unconstitutional actions. The pursuit of a legal remedy does not foreclose the pursuit of a “legislative solution.” This is not an either-or situation, despite what Governor Sandoval appears to believe.

In fact, one could argue, as the states are arguing, that litigation is a necessary step toward forging a compromise which forces the president to abide by his constitutional duty to “take Care that the Laws be faithfully executed.” Given President Obama’s dismissive attitude toward current immigration laws, and his illegal refusal to enforce them as they apply to millions of incontrovertible lawbreakers, what guarantee is there that he would comply with any “legislative solution” that Congress actually passed, unless a court finds his current, unilateral actions unlawful?

It follows that Laxalt is merely asserting Nevada’s interests in trying to prevent an unconstitutional action by the president from saddling the state with huge additional costs – costs that Nevada is sure to incur, given that its population has the highest percentage of illegal aliens in the country, according to the Pew Research Center. The Migration Policy Institute estimates that almost half of the illegal immigrants in Clark County alone will receive amnesty under Obama’s immigration plan.

As Laxalt puts it, the solution to the immigration problem “is not for the President to act unilaterally disregarding the U.S. Constitution and laws.” President Obama “cannot bypass the peoples’ elected representatives in Congress just because they do not pass the laws he wants, nor can he simply rewrite current law under the guise of ‘prosecutorial discretion’.”

 – Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in National Review Online.