Cato and Constitutional Law Scholars file Joint Brief against Amnesty in Texas v. US

January 15, 2015

The pro-open-borders, but otherwise constitutionally sound, Cato Institute has weighed into the multi-state challenge against Obama’s amnesty decree, Texas v. US. Along with law professors Peter Margulies, Josh Blackman and Jeremy Rabkin, Cato legal scholars skillfully compare our immigration enforcement system to a “three-legged stool” that deters reliance on citizen-children born to illegal aliens post-entry, maintains a constant threat of deportation and restricts access to employment. They conclude that Obama’s Deferred Action for Parental Accountability (DAPA) program, which gives amnesty to illegal alien parents of citizens and legal residents, “knocks out each leg of the stool, and thus topples the structure of the INA.”

In highlighting the first ‘leg’, the authors argue that Congress “explicitly rejected the exact type of expansive family-unity principle that DAPA is enacting administratively.” (Emphasis in original). With the passage of the McCarran-Walter Act of 1952 as well as later amendments to the INA, Congress required that post-entry U.S.-citizen children be “at least 21 years of age” if they wish to sponsor their illegal alien parents. Without the provision, Senator Sam Ervin (D-NC) feared that “Foreigners can come here as visitors and then have a child born here, and they would become immediately eligible for admission.” Senator Robert Kennedy concurred, describing the omission as a “technical mistake.”

In their response to the Plaintiff States in Texas v. US, DOJ claims “the Executive’s exercise of discretion in enforcing the Nation’s immigration laws is not subject to judicial review.” But according to case law, the authors argue, it’s always been intended that courts review “general enforcement policies” and act as a check on “arbitrariness and overreaching agency decision-making” as well as “[s]weeping decisions on enforcement policy” that may constitute an agency’s “‘abdication of… statutory responsibilities.’” Indeed, say the authors, DAPA is a “conscious” abdication of statutory responsibilities. They write: “DAPA is not a bridge, but a tunnel under the legislative structure… [it is] a detour that bypasses the normal operation of the law Congress has enacted.”

Noting the deference courts ordinarily give to agencies in their interpretation of statutes, the authors assert that the INA is “unambiguous in rejecting DAPA’s blanket grant of immigration benefits” and therefore DHS deserves no such deference. Further, the program defies the Supreme Court’s requirement that the scope of congressional delegations to agencies be construed using “common sense”; in other words, there must be a “correlation” between “the magnitude of the effects of an agency action” and the “specificity of the statutory authorization” for that action. Given the comprehensiveness of the INA in particular, the authors write, the need for the courts to adhere to its specific statutory framework is very clear. According to the INA, the Secretary may perform acts he deems “necessary for carrying out his authority under the provisions of this Act.” (Emphasis in original). Exercises of discretion beyond the INA’s framework, they conclude, is very limited.

In her analysis-free dismissal of Arizona Sheriff Joe Arpaio’s recent challenge to DAPA, D.C. District Court judge and Obama-appointee, Beryl Howell, justified her decision in part by noting that “[t]he executive branch has previously implemented deferred action programs for certain limited categories of aliens.” According to the authors, however, each program mentioned in her opinion (repeated verbatim from the Office of Legal Counsel’s opinion on DAPA), “acted as a temporary bridge from one status to another” with grants of legal status being allotted by Congress almost immediately after. (Emphasis in original). For example, under the Family Fairness program blanket protection was offered to children of IRCA-beneficiaries who could be sponsored after the beneficiaries became lawful permanent residents. Unlike the DAPA beneficiaries, who have no legal ability to petition for a parental visa, their pathway to legal status was much more certain. Family Fairness had support from Congress, was almost immediately ratified, and the program was also far smaller by comparison, applying to only 10,600 people in 1989.

Citing Justice Jackson’s concurrence in Youngstown, the authors write, “the architecture of separation of powers… has no place for unilateral executive action based solely on Congress’s resistance to presidential preferences.” With President Obama not acting in concert with Congress and Congress having shown no acquiescence, the brief concludes that he has “declined to execute the laws as Congress wrote them” and therefore fails to take care that the laws be faithfully executed.

Cato’s joint brief can be found here.