Could the House Sue President Trump Over Immigration? Yes. It’s Happened Before.

President Trump’s idea to revoke birthright citizenship amounts to a one-man repeal of part of the U.S. Constitution. It bypasses the legislative process, which requires passage of a bill in both chambers and a president’s signature. It violates the process for amending the Constitution. It sets a unique precedent for a president using an executive order to overrule the Supreme Court.

The idea is so unconstitutional that Speaker Paul Ryan said exactly that today. But the Speaker is a total irrelevancy in the Trump world.

If such an executive order materializes, could the next House of Representatives (or Senate) actually sue the president to stop him from enforcing his order?

Yes. It has happened. And my constitutional law professor, Gene Gressman, was Special Counsel to the House of Representatives when the matter was argued before the U.S. Supreme Court in 1983.

The case involved an international student, Jagdish Chadha (pictured above). He was born in Kenya when Kenya was a British possession. His parents were born in India.

When Kenya became independent, the new nation did not recognize him as a citizen. They told him he was a British citizen.
Britain passed a law (Immigration Act of 1971) to strip former Kenyan-born British citizens of their British citizenship.

India did not recognize him as a citizen. 

The U.S. did not recognize him as a citizen. 

Jagdish Chadha was a man without a state.

The executive branch set into motion Chadha’s deportation after his student visa expired. The immigration authorities, after receiving requests from Chadha’s lawyers, made a discretionary decision to give Chadha a reprieve. By law, the reprieve had to be reported to Congress.

Congress vetoed the reprieve. They didn’t want to give Chadha special treatment when many other people were in similar circumstances. The INS (today’s version of ICE and USCIS) ignored Congress. 

The House of Representatives exercised what is called a legislative veto. They sued to enforce this power—and with my constitutional law professor at the helm, the House lost its case in a landmark case (Chadha v. INS). Chadha (pictured above ) was granted permanent residence and began a citizen.

As students during the time of this litigation, we asked Prof. Gressman why he took a case that would have deported a stateless man. He said he was thrilled at a personal level that Mr. Chadha got to stay in the U.S. 

But he said that “presidents are not kings,” or words to that effect. His point was to defend the House of Representatives when it passes a resolution to invalidate a unilateral immigration decision.

As I recall the intense talk around the Chadha case, we expressed profound disappointment with our beloved professor. 

We sided with Mr. Chadha. 

Prof. Gressman foresaw the day when a president would take on a larger issue and act like a king, against the express wishes of elected lawmakers in Congress.

We had that talk in 1985. Today, I appreciate Prof. Gressman’s larger point. The stopping point of presidential power in immigration was eroded when Mr. Chadha won his case.