March 4, 2016
Two lower courts halted DAPA before the Justice Department appealed it to the Supreme Court which unexpectedly added the condition that before agreeing to hear the case DOJ must also address the Take Care Clause: did the president take care that U.S. laws be faithfully executed? House Republicans are convinced Obama did not.
Speaker Paul Ryan called the House’s intervention in U.S. v. Texas an “extraordinary circumstance” which will challenge DAPA’s legality. The House insists that pursuant to the Constitution’s Article One only Congress can write laws, and that the president’s executive actions illegally circumvent the process of getting both chambers to vote and approve bills, in this case a sweeping immigration revision.
The administration was quick to respond and to defend Obama, but may have inadvertently given support to Ryan. The DOJ said disingenuously that because Congress doesn’t appropriate sufficient monies to enforce immigration laws, Obama is well within his presidential authority to grant so called deferred action on deportations to illegal aliens. The DOJ Supreme Court brief included this: “Limited appropriations make broad discretion a practical necessity. Congress has appropriated approximately $6 billion for enforcement of immigration and customs laws, detention and removals, and investigations.”
But deportations aren’t at the heart of DAPA. The lower courts ruled that Obama could use discretion on deportations which he has done for two terms. In his Fifth Circuit Court of Appeals ruling that upheld the lower court, Justice Jerry Smith wrote that DAPA "would allow illegal aliens to receive the benefits of lawful presence solely on account of their children's immigration status, without complying with any of the requirements … that Congress has deliberately imposed."
The final circuit court decision concluded that DAPA "would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress's stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.” DAPA is about work permits, and not deportations, a fact Obama has never acknowledged and that the DOJ ignored in its defense of the president.
Since 2014, Obama has protested that “all we’re saying is that we’re not going to deport you.” The Associated Press fact-checked Obama and found that DAPA will allow unlawful immigrants to be legally employed and to compete with citizens and legal residents for better-paying jobs—a much more expansive result that just not being deported.
Granting employment authorization to millions of illegal aliens ignores nearly a century of case law which has held that the Executive Branch may not go around Congress by opening the labor market to ineligible illegal aliens. Doing so defeats the federal government’s sworn duty to protect American laborers from an influx of skilled and unskilled labor.
The Supreme Court is expected to hear arguments in April and rule before the June recess.
Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]