By Dan Stein
The Supreme Court has decided to review certain elements in United States v. Texas. The Supreme Court should leave the injunction in place until a full trial on the merits. There is no urgency to decide this case so long as the administration is restrained from giving out benefits that would be difficult to revoke: work authorization and eligibility for various other benefits.
Should the Court lift the injunction and endorse the administration’s wildly broad claims of unlimited power to permit millions who are outside the rules stipulated by the Immigration and Nationality Act (INA) to remain here, then Congress and the American people will be left without remedy in the face of an unprincipled executive who willingly refuses to carry out his legal and constitutional responsibilities. In other words, the American people will never be able to rely on the courts to stop executive lawlessness in the provision of civil benefits in favor of an unlimited number of aliens who seek to enter or remain in the United States.
On November 20, 2014, just two weeks after President Barack Obama and his party were repudiated by voters in the midterm elections in which immigration was a central issue, Department of Homeland Security Secretary Jeh Johnson issued a series of memos dramatically altering U.S. immigration policy by executive fiat.
The most dramatic of these actions were two programs designed to grant de facto amnesty and work authorization to an estimated 4.7 million illegal aliens. The first of these amnesties was an expansion of Deferred Action for Childhood Arrivals (DACA) – a 2012 executive action that has thus far benefitted some 800,000 illegal aliens who arrived in the U.S. when they were under the age of sixteen and who were under the age of thirty-one when the president announced the program. The second was Deferred Action for Parents of Americans (DAPA), which would afford the same protections and benefits to illegal aliens who have U.S.-citizen children.
These two executive amnesty programs were the subject of a lawsuit brought by twenty-six states. On February 16, 2015, just two days before DHS was set to begin accepting applications for DACA+ and DAPA, U.S. District Judge Andrew Hanen issued a temporary injunction halting implementation. That injunction was subsequently upheld by the U.S. Court of Appeals for the Fifth Circuit. The Obama administration appealed that decision to the Supreme Court, which will hear arguments in late April and likely render its ruling in June. While Hanen’s injunction was based on the government’s failure to comply with the requirements of the Administrative Procedure Act, the high court has indicated that it will also consider whether the executive amnesty programs violate the Take Care Clause of the Constitution.
Under these two newly announced programs, nearly forty percent of the nation’s estimated twelve million illegal aliens would be granted legal presence and permission to work in the U.S. According to an analysis by the Migration Policy Institute, an organization that is generally supportive of President Obama’s immigration policies, combined with the forty percent of illegal aliens covered by DACA, DACA+, and DAPA, the other policy directives issued by Secretary Johnson would have exempted eighty-seven percent of all illegal aliens from enforcement actions.
In essence, under the guise of prosecutorial discretion, the vast compendium of immigration laws enacted by Congress would be applicable to a mere thirteen percent of violators. Rather than exercising discretion not to enforce laws based on extraordinary and unique circumstances, the position of the Obama administration is to enforce these laws only when circumstances are extraordinary and unique.
The development of amnesty through the use of broad extra-statutory prosecutorial discretion began almost from the day President Obama took office in 2009. The president has relentlessly expanded the use of policies to delay or defer removal proceedings and actual deportation for millions of aliens who are inadmissible or deportable under U.S. immigration law through a variety of policy-based rubrics including deferred action. Beneficiaries are in practice treated by the executive branch as if lawfully present and granted major benefits of legal permanent residency, but on an indefinite or renewable rather than permanent basis. In all other cases, not only is there no enforcement, but a new power to provide public benefits and the right to an American job.
Recognizing that significant public opposition to broad amnesty programs for illegal aliens presented perhaps insurmountable legislative challenges to passing an amnesty bill (there was no real effort by the White House or congressional leaders on amnesty during the president’s first two years in office, when he enjoyed significant Democratic majorities in both houses of Congress), administration lawyers began to explore how far the limits of what they styled “prosecutorial discretion” could be pushed. This effort culminated with the issuance of the 2011 Morton Memoranda, which asserted an inherent power to officially announce broad classifications stipulating whose illegal presence the administration would affirmatively ignore. These memos stopped short of granting them any affirmative benefit, such as deferred action or employment authorization.
Until he pulled the trigger on DACA in 2012, President Obama had asserted publicly on twenty-two occasions that he lacked the constitutional authority to grant deferred action to entire classes of illegal aliens. Nevertheless, on the eve of the announcement of DACA+ and DAPA, a memorandum opinion issued by Deputy Attorney General Karl R. Thompson gave DHS the green light to move forward. “Congress has long been aware of the practice of granting deferred action, including in its categorical variety … and it has never acted to disapprove or limit the practice,” stated the memo.
This key government claim is wrong. Between 1980 and 2005, Congress acted repeatedly to restrain, limit, or roll back the extra-statutory authority of the president and the executive branch to categorically grant relief from the nation’s laws. Every congressional legislative act that addressed the question of agency prosecutorial discretion since 1952 has either rolled back or prohibited the exercise of discretion, replaced extra-statutory discretion with statutory standards for relief, or enacted specific legalization or amnesty procedures.
The U.S. Constitution assigns the immigration-related legislative power to Congress (as the best representative of the people). “The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, [and] the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress,” wrote Justice Felix Frankfurter in Harisiades v. Shaughnessy in 1952.
The Constitution confers no enumerated powers over immigration upon the president. In contrast, Congress has exercised its plenary authority by creating a comprehensive legislative scheme, the INA, which delegates carefully circumscribed enforcement duties to the executive branch. When confronted in the past with essentially the same claims to executive power asserted by the current president, the Supreme Court and courts of appeals have affirmed the plenary authority of Congress embodied in the INA and the Constitution. In 2005, Succar v. Ashcroft, the Court held that “Congress did not place the decision as to which applicants for admission are placed in removal proceedings into the discretion of the Attorney General, but created mandatory criteria.”
To the contrary, Congress has taken explicit actions to limit the discretionary authority of the executive in the area of immigration enforcement. In the Illegal Immigration Reform and Immigration Relief Act of 1996, Congress indisputably intended “to prevent delay in the removal of illegal aliens.”
Under the INA, Congress has enumerated two mandatory statutory responsibilities to the Secretary of Homeland Security: The “power and duty” to administer and enforce all laws relating to immigration, and the mandatory duty to guard against “the illegal entry of aliens.” Under the Obama administration, neither Secretary Johnson nor his predecessor, Janet Napolitano, has faithfully complied with these statutory responsibilities. In fact, through his acts of November 20, 2014, the secretary has affirmatively shirked those responsibilities and blatantly attempted to substitute presidential policies in the place of a comprehensive system of constitutionally enacted federal laws that define who may enter and remain in the United States and under what conditions.
Needless to say, when the Supreme Court delivers its ruling in June the implications for U.S. immigration policy will be profound. What is at stake is nothing less than the entire premise of more than a century of immigration policy: Namely, the legitimacy of laws that restrict immigration in order to protect the social, economic, and security interests of the American people.
But what is also at stake is the cornerstone of our constitutional form of government: The separation-of-powers doctrine, which was fundamental to the framers’ clear intent to avoid consolidating vast power in the hands of a single individual, even one elected by the people. If a president has the power to nullify laws enacted by the legislative branch by simply refusing to enforce them or, as President Obama is attempting to do, by substituting his own policies and programs in their place, then the powers the Constitution invests in Congress are rendered meaningless.
Even those Justices on the Court who might agree with the president’s views on immigration policy generally should appreciate the precedent-setting decision they would be making by allowing the president to run roughshod over the constitutional separation-of-powers doctrine. Those who support granting amnesty to illegal aliens should recognize that a ruling in favor of his vast new claims to power to change the law would be a pyrrhic victory. It would emasculate the ability of Congress to set immigration limits and standards, and it would render the courts irrelevant in ensuring the enforcement of the very same.