Issue in Focus
Apr 15 2016
Next week the Supreme Court will hear oral arguments in United States v. Texas, the case challenging President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA). This is the program the president created through executive action in 2014 to suspend federal immigration law for more than four million aliens living in the United States illegally, granting them “lawful presence,” work authorization, and access to a host of government benefits.
The questions at the heart of the case are whether DAPA is contrary to federal law – such that the Executive branch used powers it simply does not have under existing law – and whether the process by which President Obama established DAPA failed to abide by the notice-and-comment rulemaking requirements set forth in the Administrative Procedure Act (APA).
The Obama Administration’s lawyers maintain that DAPA is a lawful exercise of the Executive’s statutory authority under the Immigration and Naturalization Act (INA), and is therefore exempt from the procedural requirements of the APA. But this argument rests precariously on a strained reading of federal law and a biased view of history.
There’s no question that DAPA is contrary to federal immigration law. The INA specifically delineates the criteria under which an illegal alien may obtain a lawful immigration status on the basis of his or her child’s immigration status. And it places a strict annual upper limit on the number of individuals who may receive such adjustment of status. With DAPA, President Obama simply rewrote these statutory provisions, loosening the requirements and bypassing altogether any numerical limitations.
The real debate in this case is whether President Obama’s substantial revisions of the law fall within the boundaries of “prosecutorial discretion,” which gives executive-branch agencies limited authority to establish enforcement policies that prioritize the allocation of limited resources. The Obama administration maintains that DAPA is no different from deferred-action programs of the past, but an honest assessment of the historical record proves the opposite to be true.
Whereas former presidents have always reserved deferred action to provide temporary relief to narrowly tailored groups – often no more than one thousand individuals per year – President Obama is trying to use it to grant amnesty to more than four million foreign nationals living in the United States illegally.
While the politics of immigration may be controversial, as a legal matter, the facts of the case are clear and should form the basis of the Supreme Court’s opinion: by adopting the DAPA program, President Obama broke the law, usurped Congress’s authority to regulate immigration, and violated his constitutional duty to “take Care that the Laws be faithfully executed.”