IRLI Brief Shows Obama’s Latest Amnesty Decree Is Unconstitutional


January 12, 2015

In their friend-of-the-court brief (attached here) filed last week in Texas et al v. US, IRLI recounts the many attempts the Executive’s made to push through mass deferrals of illegal alien removals over past administrations. Just like Obama’s latest amnesty decree, the so-called ‘Deferred Action for Parent of Arrivals’ (DAPA) program, these attempts have usually been “justified” under the pretext of “prosecutorial discretion.” But as IRLI’s brief shows, Congress has consistently responded by restricting and rolling back the Executive’s exercise of discretion and implementing increasingly detailed statutory guidelines on who should be admitted into the country and on what terms.

Besides its scale, what makes the Obama Administration’s latest claim of prosecutorial discretion unique is its brazenness as seen through the Office of Legal Counsel (OLC)’s “defence” of the program, which wasn’t offered when DACA was announced in 2012. In summarizing their opinion on the new DAPA program, OLC states, “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.” As one can read in IRLI’s brief, however, such a statement is breathtakingly false.

A cursory look at the historical record clearly shows Congress constantly acting to eliminate or roll back the Executive’s extra-statutory practices. For instance, the Executive’s parole authority, featured prominently in the OLC’s opinion, had for years been used as a kind of mass refugee program in violation of the INA, which required parole be granted only on an individual case-by-case basis. By enacting the Refugee Act of 1980, Congress sought to curb the Executive’s use of the program which, in the words of the Second Circuit, was being used by the Executive to “circumvent congressionally established immigration policy.”

Another example is the ongoing Temporary Protected Status (TPS) program. Enacted in 1990, the program is essentially a temporary refugee program applied to certain national groups that suffer (genuine) “humanitarian crises”, such a natural disaster in their home countries. TPS was specifically put in place to overturn so-called Extended Voluntary Departure, which the Executive had created out of whole cloth in the years previous. Congress created TPS as an “exclusive remedy” in the area of deportation relief based on nationality and to rein in the Executive’s activity in this area.

Regarding Obama’s purported application of “deferred action”, IRLI’s brief notes that only two provisions in the INA mention the phrase with neither supporting agency prosecutorial discretion as it was implemented by DACA or DAPA. The exercise of “deferred action” in individual civil deportation proceedings was first disclosed by the INS in 1975 in relation to the Nixon administration’s previous efforts to deport the late musician/social activist, John Lennon. Although such grants were later rescinded by the courts, the INS continued to revise the practice by way of “operation instructions” until 1996 when then-acting Executive Commissioner, Paul Virtue, rescinded “deferred action” completely due to its clear conflict with two acts enacted that year: the Illegal Immigration Reform and Immigrant Relief Act (IIRIRA) and the Anti-Terrorist Effective Death Penalty Act (AEDPA).

Although Congress’s authority over immigration policy has been recognized by the Supreme Court going back to the 1880s, Congress has been continuously challenged by an overreaching Executive forcing it to enact ever more comprehensive statutory frameworks as a consequence. This culminated in 1996’s IIRIRA amendments to the INA, which was indisputably intended to “prevent delay in the removal of illegal aliens.” In its express provisions and in its comprehensive detail, the act intended to greatly restrict presidential authority to independently grant deferred action relief on a categorical basis.

The OLC has stated Obama’s unilateral actions are not “abdications of statutory duties”, but abdication is the only conclusion one may draw when viewing the DHS’s mandate under the INA. Congress has delegated two mandatory statutory responsibilities to the DHS Secretary in the INA: (1) The “power and duty” to administer and enforce all laws relating to immigration, and (2) the mandatory duty to guard against “the illegal entry of aliens.” Meanwhile, the only discretionary authority allocated to DHS from Congress relates to two specific functions: (1) to establish regulations and “perform other acts,” and (2) to “appoint employees.” As the OLC’s opinion shows in its failure to cite a single provision of the INA, nowhere in the act is the Executive authorized to refuse enforcing our democratically-formed laws on immigration.

The Southern District Court of Texas will hear arguments for enjoining DAPA on January 15th.

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