Chief Justice Rush Limbaugh Declares Obama's Immigration Order “Unconstitutional”

Rush Limbaugh is continuing his tirade against President Obama's executive order on immigration, which will reportedly defer deportation for the undocumented parents of U.S. citizens and permanent residents. In addition to ignoring legal experts and the historical precedent for this action, Limbaugh also incorrectly described the legal basis for these immigrants' future work permits.

On November 20, the president will announce plans to exercise prosecutorial discretion and take executive action on immigration, a move that could expand the Deferred Action for Childhood Arrivals (DACA) program in addition to preserving families by halting deportations for certain groups of undocumented immigrants. The order is also expected to make clear that those affected will be eligible for work authorization permits. Even though every president since Dwight Eisenhower has taken some kind of executive action on immigration, right-wing media have nonetheless attacked Obama's action as illegal.

Limbaugh has been a vocal opponent of the president's executive order, joining the right-wing media's failed attempt to distinguish Obama's order from similar executive actions taken by Republican presidents like Ronald Reagan and George H.W. Bush. Limbaugh continued to mislead about the order on his November 20 radio show, saying that “there is no way in hell that giving people who are here illegally work permits fits under the rubric of prosecutorial discretion.” Even though Limbaugh conceded that “prosecutorial discretion is standard operating procedure, it's been used for centuries,” he still concluded that Obama “doesn't have that power” to exercise discretion over deportations because it would “turn [undocumented immigrants] legal” :

Limbaugh's claim that “there is no way in hell” it's lawful to give work authorization permits to undocumented immigrants whose deportations have been suspended is not only incorrect, it fails to recognize immigration law already in place. In an interview with The Washington Post's Greg Sargent, former acting general counsel for the Department of Homeland Security John Sandweg explained that allowing work authorizations is required under the law and has been since before Obama took office (emphasis added):

[SARGENT]: What about offering them work authorization? Doesn't that go beyond just deprioritizing removals? Conservatives would point out that even if you can justify executive discretion deferring deportations, offering work authorization crosses into rewriting of the law.

SANDWEG: Longstanding law already allows for individuals who are granted deferred action to gain work authorization. This is not central to how and why a policy like DACA makes sense. We were looking for a tool to help our officers and agents to better do their jobs. The easiest way to effectuate that was granting deferred action. There was a longstanding, preexisting regulation that governs who gets work authorization; deferred action recipients were included in that regulation -- a decision that was made long before this administration.

Sargent followed up with David Leopold, the former president of the American Immigration Lawyers Association, who further explained that the “federal regulations governing employment under immigration law existed well before DACA. Under those regulations, any undocumented immigrant granted deferred action -- under programs that preceded DACA or coincide with it -- had already been able to apply for employment authorization.” Shikha Dalmia, senior policy analyst at the libertarian Reason Foundation, agreed with the assessments of Sandweg and Leopold in August, adding the free-market rationale:

[O]ffering work permits isn't some further step. It's part of the deferral process. Once the president officially defers action against some folks (or offers them parole-in-place, which allows them to live in the United States with oversight) they automatically become eligible for work authorization under the Immigration Reform and Control Act of 1986 and driver's licenses under the Real ID Act of 2005.

This might seem crazy to anti-immigration hawks, but it makes good sense. Letting out-of-status foreigners stay is likely cheaper than deporting them. And if they are going to stay, it is far better to give them the legal means to earn their keep rather than seek handouts on the street or from the government.

Limbaugh is also wrong on the legality and effect of prosecutorial discretion in immigration enforcement.

Legal experts from across the ideological spectrum agree that there is plenty of legal and historical precedent to support Obama's order, and even Fox News hosts Bill O'Reilly and Megyn Kelly have acknowledged that the president has the authority to use prosecutorial discretion to prevent the removal of certain groups of undocumented immigrants. As explained by the American Immigration Council, exercising prosecutorial discretion over deportation proceedings is well within the president's constitutional authority, and “there is no serious doubt about the President's legal authority” to exercise prosecutorial discretion to prioritize immigration deportations.

Limbaugh is right that presidents don't “have that power” to unilaterally “turn [undocumented immigrants] legal,” but that's not what the president is doing.

By definition, deferred action on deportation means it is administrative relief of a temporary nature. Beneficiaries of the president's decisions to prioritize the deportation of violent criminals over undocumented parents of U.S. citizens does not give them permanent legal status. Permanent legal status -- or a pathway to citizenship -- would be legalization of the sort Reagan supported and passed into law. The only recent federal attempt to “turn them legal” was the bipartisan comprehensive immigration reform Senate bill that House Speaker John Boehner refused to bring to the floor last year.

Photo of President Obama giving remarks on immigration reform at Del Sol High School on January 29, 2013 by Pete Souza via the White House/Flickr under a U.S. Government Work license.