As Paul noted, and many news outlets have reported, the Department of Homeland Security yesterday issued criteria regarding the enforcement of immigration statutes in certain cases. Now Rep. Steve King has announced his plan to file suit to prevent the Administration from implementing those criteria.
King’s statement - which does not mention a lawsuit – is here. It nevertheless suggests a constitutional objection, founded on the President’s implementation of policies embodied in the DREAM Act. That bill passed the House in 2010, but did not win approval in the Senate.
A lawsuit by King would implicate the rule that a congressman generally lacks standing to challenge executive action, when the alleged injury is institutional in nature. The Supreme Court has said, however, that federal legislators can sue if their votes have been “completely nullified” – a term that has been interpreted by the D.C. Circuit to mean, in essence, the absence of any legislative remedy whatsoever. Could Congress preclude the Department of Homeland Security from exercising its enforcement discretion in the manner announced on Friday? If the answer is “yes,” then King seemingly would not have standing.