Ian Millhiser at ThinkProgress points out something important about both the Republican freakout and potential (and actual) lawsuits against Obama over his executive orders on immigration: The Supreme Court only a couple years ago upheld broad executive branch discretion on immigration, with two of the court’s conservative members in the majority.
The case was Arizona v United States, the suit involving that state’s infamous Act 1070 and its draconian immigration laws. Justice Kennedy wrote the decision, joined by Chief Justice John Roberts and Justices Breyer, Ginsburg and Sotomayor (Kagan had recused herself due to previous work on the case as Solicitor General). That ruling struck down some parts of the law as a violation of federal authority over immigration and said, in part:
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal…Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.
Kagan would almost certainly have been a 6th vote for broad executive branch discretion, which is a very strong majority on a court with the same makeup it had then. Legally, the case for the president’s authority on this is pretty much unassailable.