U.S. v. Texas: What You Need to Know

Published on January 29th, 2016

President Obama on the Telephone
Supreme Court to rule on Obama’s executive immigration action.

In April, the Supreme Court will hear U.S. v. Texas, a case that most legal scholars agree will be a landmark decision no matter how the justices rule.

With only a little more than two months to go, enforcement advocates should have their talking points in order to defend the rule of law and to oppose President Obama’s unconstitutional unilateral edict, deferred action for parents of American citizens, or DAPA, that would give amnesty in the form of temporary legal status and work permits to about 5 million illegal immigrants.

To that end, Washington D.C. lawyer and Federalist blogger Gabriel Malor has provided a useful summary to help Americans understand what’s at stake.

First, Texas hopes to stop President Obama’s “end-run” around Congress that would, should the White House prevail, result in numerous federal and state benefits for aliens, including Social Security retirement, Social Security disability payments, Medicare, Earned Income Tax Credits, state driver’s licenses and state unemployment insurance. In addition to the federal costs, the state taxpayers would also end up paying millions of dollars to fund DAPA.

Second, the Executive Branch cannot simply announce new laws. Federal agencies must use notice-and-comment rulemaking when they promulgate new substantive rules. Department of Homeland Security Secretary Jeh Johnson didn’t follow the mandatory procedure. Moreover, Congress never authorized DHS to create DAPA so whether notice-and-comment is required is irrelevant because what Obama contends is the law really is an unconstitutional executive action.

Third, the Supreme Court ordered the states and the federal government to address the Take Care Clause. The Court wants to know if DAPA expressly violates the constitutional requirement that the executive branch “shall take care that the laws be faithfully executed.” Malor argues that the Obama administration cannot successfully contend that it had to act on its own because Congress refused to. The Legislative Branch alone has the authority to write immigration law.

Moreover, Congress explicitly provides that illegal aliens’ U.S. citizen (or lawful permanent resident) children cannot be the basis for legalizing their parent’s immigration status until the child has reached age 21. An exception may be granted if the parent’s removal would cause exceptional and extreme hardship to the child. With an estimated 5 million DAPA candidates, proving hardship levels would be difficult if not impossible.

In his blog, Malor develops more fully his key arguments, so be sure to read it all. Parties interested in how the Obama camp sees DAPA’s prospects in the Supreme Court can read Washington University Professor Emeritus Stephen Legomsky here.

Spoiler alter: In his closing paragraph, Professor Legomsky concludes that: “No one state should be empowered to thwart the federal government’s nationwide policy decisions so easily.”

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