RUTHFULLY YOURS

The broadest claim DOJ makes is that the executive has unrestricted discretionary power in defining who is eligible for deportation deferrals. IRLI’s brief raises the wealth of Supreme Court commentary confirming Congress’s Article I, Section 8 power over immigration and naturalization. That the Constitution delegates almost all immigration-related power to Congress was confirmed in the 1952 Supreme Court decision of Harisiades v. Shaughnessy and again in 1983 with INS v. Chadha. In their briefs, DOJ attorneys don’t even bother trying to limit or qualify these fundamental rulings. If the executive truly believes it was acting within its constitutional powers when it instituted the DACA program, why did the president bother entertaining a congressional debate on the legislative version of DACA (a.k.a. the DREAM Act) in the first place? And if that authority is truly so widespread, why doesn’t the DHS secretary apply blanket amnesty to all 12 million illegal aliens in the country instead of the 1.8 million done under the DACA program and the 4.1 million covered under DAPA?

According to DOJ briefs, the executive’s previous grants of deferred action at the very least show “acquiescence” on the part of Congress. But as the recent decision in Judulang v. Holder confirmed, “arbitrary agency action becomes no less so by simple dint of repetition.” As for those specific instances where the executive has granted deferred action in the past, IRLI’s brief at the district-court level shows that Congress’s response was far from submissive, and they routinely stepped in to either roll back the executive’s actions or restrain further activity by embedding the programs in statute.

In order to disregard a civil statutory mandate, the president must show that it’s against the Constitution rather than just a policy preference.

Throughout DOJ’s briefs is the claim that DHS cannot deport “every single one of the 12 million illegal aliens” in the country due to Congress’s having appropriated to DHS enough funds to cover only 400,000 deportations a year. Never mind that such a false choice fails to acknowledge the far cheaper alternatives available (E-Verify, for one); the argument contradicts circuit-court precedent. According to the D.C. Circuit in City of Los Angeles v. Adams, and as the Supreme Court has similarly ruled, “the agency administering the statute is required to effectuate the original statutory scheme as much as possible, within the limits of the added constraint.”

The policy behind such a ruling is obvious from a separation-of-powers perspective. If the executive could so abdicate its mandate to enforce our laws, it could ignore congressional mandates on the basis of mere agency speculation. Any pretext of anticipated high costs could act as a cover for what really is politicized inaction. This looks to be the case with the Obama administration’s claims that it must abdicate its immigration-enforcement mandate because of “limited resources”; why else would the president choose to push through his DACA decree only after, and not before, its statutory version failed to get passed in Congress?

Further, any claim that deportation deferrals are legitimate exercises of the president’s pardon powers is equally weak. IRLI’s brief notes that although the president can make pardons on virtually any policy ground he likes, he may do so only where a federal criminal conviction is involved. Deportation orders, being civil administrative decisions and not punishments, are inapplicable under the pardon power. In order to disregard a civil statutory mandate, such as INA § 235(b)(2)(A)’s clear mandate that illegal aliens “shall be detained for removal proceedings,” the president must show that it’s against the Constitution rather than a mere policy preference.

The DOJ also claims the executive’s application of deferred action can’t be reviewed by federal courts in light of the Supreme Court “decision” in Reno v. Anti-Arab American Discrimination Commission. The DOJ fails to point out, however, that the single statement they rely on from that case is mere dicta and not part of the actual holding. Further, the statement in question referred to a practice that was preceded and extinguished by the 1996 amendments to the INA. Such a reading would also render Congress’s plenary power over immigration policy meaningless, as no check would be available to restrain possible executive abuse.

Those 1996 amendments did circumscribe some authority that federal courts previously had in hearing appeals of agency decisions to remove an inadmissible alien, but only for claims brought by or on behalf of an alien, and only in regards to an agency decision to remove an alien (the case DOJ refers to was about an appeal brought by the ACLU of a deportation order against a suspected terrorist group). Neither applies to a situation where the executive is deferring the deportation of millions and handing them all work permits.

It’s hoped the Fifth Circuit will see the DOJ’s spurious legal arguments for what they are: desperate attempts to save their boss’s legacy of having erased the borders and transformed the nation.

— Ian Smith is an attorney in Washington, D.C. He is on the staff of the Immigration Reform Law Institute.