On Tuesday morning, the Supreme Court announced that it will hear a
case brought by Texas and 25 other states challenging President Barack
Obama’s attempt to give legal status and work authorizations to more
than four million illegal immigrants.
In a brief order, the Supreme Court directed the government and the
states to address whether the Obama administration’s program “violates
the Take Care Clause of the Constitution.”
The Programs in Question
In 2012, the administration created the Deferred Action of Childhood
Arrivals program, enabling 1.7 million illegal aliens under 30 years old
brought to the U.S. as children to apply for work authorization and
deferred deportation. A deferred action is relief from deportation or
removal proceedings that can be granted by the Department of Homeland
Security.
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Then, in 2014, this program was expanded by, among other things,
eliminating the age cap and increasing the term of deferred action and
employment authorization from two to three years.
The administration also created Deferred Action for Parents of
Americans, conferring deferred action on illegal aliens whose children
are U.S. citizens or lawful permanent residents, provided no other
factors make deferred action inappropriate.
In addition to lawful presence, Deferred Action for Parents of
Americans grants deferred action recipients benefits such as work
authorizations, driver’s licenses, Social Security, and other government
benefits, costing an estimated $324 million over the next three years,
according to the district court.
Federal Appeals Court Ruled in Favor of States
Last November, a federal appeals court ruled in favor of the states,
finding that they were likely to succeed on the merits of their claims
that the Deferred Action for Parents of Americans program violated the
Administrative Procedure Act (APA).
The states argued that this program violates the APA’s
notice-and-comment requirement as well as the Take Care Clause of the
Constitution. Since they bear the brunt of the financial burden of this
program, the lower court ruled that they had standing to sue.
The federal appeals court did not rule on whether the Obama
administration violated the Constitution in promulgating the Deferred
Action for Parents of Americans program (which is what the Supreme Court
today instructed the parties to address). The Court will also consider
whether the administration complied with the APA.
The Constitutional Issue
Article II of
the Constitution charges the president with the duty to carry out the
law—to “take care that the laws be faithfully executed.” Contrary to
what some more ambitious presidents would have us believe, this was
meant to constrain the executive’s power. It’s a duty that includes
complying with statutory mandates, enforcing laws and regulations
(including prosecuting lawbreakers), and defending the validity of laws
in court.
Exercise of Prosecutorial Discretion?
The Obama administration has argued that its Deferred Action for
Parents of Americans program is merely an exercise of prosecutorial
discretion—the policy that the executive enjoys wide discretion in how
to execute the law so it may prioritize the use of law enforcement
resources and decide not to enforce a particular law against a
particular individual or small category of individuals on a case-by-case
basis.
But the Obama administration’s decision not to deport (and further to
grant status and benefits to) an estimated 4 million illegal aliens and
to call this “prosecutorial discretion” stretches that limited policy too far.
Courts tend to be reluctant to say the president has abused his
discretion or crossed the line into abdicating a constitutional duty.
Obama, however, has clearly abdicated his duty to take care that the
laws be faithfully executed, and he’s harmed the separation of powers
that the Founders of the Constitution so carefully delineated.
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