By Joe Guzzardi
April 6, 2016
Senate Republicans filed an amicus brief to the U.S. Supreme Court against President Obama’s deferred action for parents of American citizens and lawful permanent residents, the so-called DAPA program. Of the 54-member GOP conference, 43 signed the brief including Majority leader Mitch McConnell (R-KY) and whip John Cornyn (R-TX). McConnell and his colleagues called Obama’s immigration action a “brazen challenge” to Congress’ lawmaking powers.
Last month, the House filed a similar brief which read, in part, that "neither any immigration law now on the books nor the Constitution empowers [Obama] to authorize – let alone facilitate – the prospective violation of those laws on a massive class-wide scale.”
The amicus briefs are the latest development in the simmering immigration debate that will come to a head on April 18 when the Supreme Court hears U.S. v. Texas, the year’s most important case. When the court hands down its decision before the June recess, historians will forever refer to it as a legal landmark.
The immigration conflict that pits Obama against Congress dates back at least to 2010. In October of that year, Obama said on more than 20 separate occasions that he’s neither a king nor an emperor and that, therefore, he “just can’t make up laws by myself."
Yet despite Obama’s comforting words – comforting at least to Americans who feared that he would overreach his executive powers to enact an amnesty – the President soon contradicted himself and ordered Department of Homeland Security Secretary Jeh Johnson to draft the DAPA memo which would grant temporary legal status to about five million illegal immigrants, and would protect them from deportation. In so doing, Obama violated the Take Care clause which orders the president to faithfully execute the nation’s laws, a key element which the court will also consider.
Basically, the President couldn’t sell his program to Congress, so he acted independently and bypassed the legislative branch. In the eyes of the GOP and other legal scholars, Obama proceeded unconstitutionally. Obama and Johnson cannot simply will new federal programs into existence on a whim, with a wholesale suspension of immigration law. Existing immigration laws provide for asylum, adjustment of status, various visas, removal and cancellation of removal. But nowhere do they provide a path for affirmative benefits for illegal immigrants.
Deportation is not at the heart of the Supreme Court case. Two lower courts ruled earlier that the President can continue to exercise discretion on which aliens the administration chooses to deport or allows to remain. At issue and for the court to decide is whether the President can confer employment authorization documents, Social Security numbers, disability payments, Medicare and earned income tax credits. Beyond the federal benefits, DAPA would inflict costs on state taxpayers, too, in the form of driver’s licenses and unemployment insurance.
And there’s still more that the Supreme Court can fault the administration for. The congressional Administrative Procedures Act (APA) requires federal agencies to use notice-and-comment rulemaking when they promulgate new substantive rules. During the comment period, Americans can express their opinions about the proposed laws. This mandatory procedure was unheeded this time, an indisputable fact.
Based on incontrovertible facts, the court must rule for Texas. With only eight justices, however, four seemingly predisposed to Obama’s views and four opposed, the likely outcome is a 4-4 tie which would affirm the appeals court’s earlier decision against DAPA.
Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]