Obama's Executive Action 'Not Constitutional'

WASHINGTON - Emotions ran high during a Capitol Hill hearing examining the legality of President Barack Obama's controversial executive order on immigration.

Protesters interrupted the House Judiciary Committee hearing several times Tuesday as immigration reform supporters demanded action from Congress.

But the hearing wasn't about possible policy moves on immigration. It was about whether the president abused his constitutional authority when he signed his executive order allowing 5 million illegal aliens to stay in this country rather than be deported - and to qualify for some government benefits.

Congressional Republicans say the president went too far because only Congress can change federal immigration law.

"President Obama has just announced one of the biggest constitutional power grabs ever by a president. He has declared unilaterally that -- by his own estimation -- almost 5 million unlawful immigrants will be free from the legal consequences of their lawless actions," Rep. Bob Goodlatte, R-Va., said.

Republicans argue that even the president admitted his executive order is unconstitutional. They tried to prove it with a video showing all the times he admitted he couldn't change the law.

And even after Obama passed his executive order, he said, "I just took an action to change the law."

Jay Sekulow, chief counsel for the American Center for Law and Justice, believes the president's own words say it all.

"He changed the law. Presidents cannot change the law. You can't do so constitutionally, you cannot do so under Supreme Court precedent, and you can't change the law to comport with his preferred public policy," Sekulow told CBN News.

Democrats on the committee pushed back, saying the president is within his legal rights to use what's known as "prosecutorial discretion," - meaning the president, like a prosecutor, can decide which crimes to prosecute, and which laws to enforce.

Republicans disagree, arguing that stretches the idea of prosecutorial discretion far beyond it's real meaning. They argue it doesn't apply to enforcing immigration laws that are passed by Congress.

Democrats say it wouldn't have come to this if Republicans had passed immigration reform.

"I defy any of my colleagues on this committee or anyone in Congress to tell me that our immigration is not broken. We know that it is, but I am disappointed that this Congress like a number of them before it has done nothing to solve the problem," Rep. John Conyers, R-Mich., said.

But despite Democrats trying to make the hearing about Republicans and immigration, witnesses on the panel pointed out the larger issue of how Obama's executive action is going down a treacherous road - and that he could be setting a dangerous precedent.

"The president's executive power does not give him the power does not give him the power to govern by decree. It does not give him the power to suspend the law," Professor Ronald Rotunda, with Chapman's Fowler School of Law, said.

"If he can actually do this and get away with, I guess future presidents can say that they're going to suspend more parts of the Affordable Care Act," he continued. "Maybe they will suspend it all. We don't need a Congress to repeal it. We just need a president to say, 'I suspend it.'"

Sekulow said the president has made congressional action on immigration reform even more difficult to accomplish because the president has now made the argument about his actions, rather than what to do about the immigration system.

"My ultimate concern here is that the president's utilization of executive action has set back the debate on real immigration reform probably a couple years because we are arguing procedure rather than substance," Sekulow said.

Meanwhile, the Republican Party is trying to figure out what their next move is now that the president is moving forward with his executive order.

Speaker of the House John Boehner said the House will vote to undo the president's executive actions on immigration. But that's just legislative window dressing since the president would clearly veto that move.

It leaves Republicans and Democrats in a political game of chess over a very volatile and emotional issue.