Any Amnesty Court Challenge Needs To Look At Last Year’s Near-Win In Texas

Ian Smith Immigration Reform Law Institute
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Congressional leaders and state attorneys general looking to use the courts to block Obama’s latest amnesty decree need to remember that much of the work was already done in April of last year. Although forced to dismiss the case for lack of jurisdiction, Judge O’Connor of the Northern District of Texas found that ICE union chief Chris Crane and 9 other ICE agents were “likely to succeed on the merits of their claim in challenging [deferred action for childhood arrivals (DACA)] as contrary to the provisions of the Immigration and Nationality Act.”

Although the Court found that the Civil Service Reform Act stripped it of the jurisdiction to decide federal employee disputes, Judge O’Connor’s ruling lays out the arguments that plaintiffs with firmer standing could use in their efforts to overturn Obama’s unconstitutional decree.

Crane v. Johnson, now on appeal in the 5th Circuit, deals with what’s required under the enforcement provisions of the INA and whether Obama’s 2012 DACA announcement conflicts with the act’s requirements. In the case, DHS defendants basically argue what Obama’s arguing now: that the Executive has long exercised prosecutorial discretion in the immigration context and therefore mass deferrals of deportation are within their authority. But these and other arguments from DHS were swiftly knocked down by the Texas federal court in Crane.

Aliens not yet lawfully admitted into the country are generally referred to as “applicants for admission” in the INA. Obama’s 2012 DACA directive had purported to apply relief from deportation to these applicants if they met a broad set of criteria. But according to the INA, as it was amended in 1996 under Clinton, “applicants for admission” must be inspected by immigration officers and then detained if found to be illegal. As it clearly states, “applicants for admission shall be inspected by an immigration officer” and, upon inspection, if the officer determines the alien is “not clearly and beyond a doubt entitled to be admitted,” they “shall be detained for removal proceedings.”

As the court noted, under any sensible construction of a statute, the word “shall” denotes an obligation to act. Lawyers for DHS, however, argued otherwise and attempted to tell the court that “shall” in the INA really means “may,” as in ICE officials may or may not initiate the removal process when they come across an alien unlawfully residing in the country. Along with the general structure of the INA and the detailed exceptions to removal requirements it offers, the court concluded that the INA “imposes a mandatory duty on immigration officers to initiate removal proceedings” and that DHS’s baseless formation was against the “basic rules” of statutory construction.

In addressing Heckler v. Chaney, a case currently used by Obama’s apologists to justify his latest amnesty, the court found that although in that case the use of “shall” in the Federal Food, Drug and Cosmetic Act did contain some discretion for prosecutions, the INA by contrast “is not structured in such a way.” Nothing in it, the court said, suggests, “Congress’s use of the term ‘shall’ imposes anything other than a mandatory duty.”

Alternatively, DHS attempted to argue that, in any case, this “shall” language only really applies to those aliens attempting to come into the U.S. at a port of entry, rather than those already in the interior of the country. In other words, for illegals that have already circumvented border security, enforcement of the INA is completely discretionary. This certainly would’ve been news to Officer Crane, who’s been an active-duty ICE agent for over 10 years. In the court’s opinion, however, DHS failed entirely to provide any “statutory provisions, regulations, or cases” that could evidence such a reading.

Finally, the court was asked to determine whether the INA leaves room for the exercise of prosecutorial discretion on the part of DHS. As the court pointed out, under constitutional precedent, DHS may have discretion to refrain from initiating removal proceedings if Congress lacks the power to legislate in the area of immigration law with regard to the removal of aliens. But Congress, they found, unquestionably has the ability to legislate in this area. Further, “Congress has the ability to eliminate DHS’s discretion with respect to when to initiate removal proceedings against an alien, and DHS cannot implement measures that are incompatible with Congressional intent.”

The Court noted that even if DHS and ICE may generally have the discretion to determine whether to initiate a removal, “Congress may limit an agency’s exercise of enforcement power if it wishes.” This, the court found, is exactly what the 1996 amendments to the INA did. By using the mandatory term “shall” in the act, the court held that Congress did indeed “circumscribe ICE’s power to exercise discretion when determining against which ‘applicants for admission’ it will initiate removal proceedings.”

As the Crane case reminds, there is a massive loophole in our immigration law in relation to standing. While building their case against Obama’s amnesty, Congress should also work to further amend the INA to allow some room for citizen suits against a federal government failing to do its duty. If law can be circumvented by cynical politics of the highest degree it simply doesn’t rule.