DOJ Attorneys Tell District Court Amnesty Benefits Are Legal, Temporary — Other Officials Say The Opposite

Ian Smith Immigration Reform Law Institute
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DOJ’s request to let Obama’s amnesty proceed hit another hurdle late Monday night when U.S. District Judge Andrew Hanen demanded that they “fully explain” why DHS has already extended benefits to 100,000 illegal aliens covered under the DACA extension before a full trial has been heard.

The demand comes off the heels of a brief filed by Judicial Watch late last week warning the court that not only are the benefits prohibited under long-standing acts of Congress, but they would also be difficult to roll back if a ruling on the merits comes out in Texas’s favor. DOJ attorneys had been arguing the opposite: that DACA and DAPA’s amnesty and benefits can be rescinded anytime and therefore should be allowed to go ahead. As usual this is pure theatre and it’ll be interesting to see what other gems they’ll come up with in their response to Judge Hanen’s new order.

DOJ attorneys argue that the injunction should be lifted because DACA and DAPA’s benefits can be revoked at any time and can easily be reversed.

But how DAPA-recipients’ new legitimate Social Security numbers (most illegals have been using stolen or phony numbers up to this point) and employment authorizations could be taken back, DOJ fails to explain despite this point being central to Judge Hanen’s original injunction order. As Hanen stated, if he didn’t immediately halt DAPA, there would have been “no effective way of putting the toothpaste back in the tube should [Texas] ultimately prevail on the merits.”

Left-libertarian law professor and Washington Post blogger Ilya Somin supports this DAPA’s-only-temporary fallacy. Somin makes the argument that the president hasn’t actually declared “[DAPA-beneficiaries]’ presence in the country to be legal nor [has he] given them any ‘benefits’ that have the force of law”; therefore, he says, DAPA isn’t permanent. He’s since corrected his piece on the “benefits” gaffe; DAPA’s work permits are indeed “benefits” — Somin is parroting open-borders advocates when they try to say DACA and DAPA don’t amount to “amnesty” because they ‘don’t’ forgive anything’ and ‘don’t give out any new rights.’

That DAPA could be easily reversed is precisely what Obama didn’t intend. On the eve of its announcement at a staged town hall in Nashville, he stated: “It’s not likely politically that they [i.e., the GOP] reverse everything we’ve done.” At a rally in Chicago, he attempted to placate Hispanic hecklers apparently upset that DAPA wasn’t anti-American enough, by saying he “took an action, and changed the law.”

Further, DHS itself has admitted that the DAPA program allots “legal presence,” and as Judicial Watch notes in their brief, DHS has, “adopted a new rule that substantially changes both the status and employability of millions” and that “[t]hese changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.”

Any allocation of work permit-benefits to illegal aliens not only makes the DAPA program permanent in nature and justifies its injunction pending trial, it also violates § 274A of the INA as well as traditional exercises of prosecutorial discretion. Regarding the latter, an agency choosing not to prosecute individual violations of the law is generally presumed to be unreviewable by the courts, a legal precedent Obama had been banking on. But Judge Hanen separated DHS’s refusal to prosecute illegals with the grants of benefits they received under DAPA. The latter he said was an affirmative act and should be distinguished from a decision not to prosecute, which the Supreme Court previously decided is agency “inaction” and not reviewable by the courts.

On Hanen’s ruling, Somin tries to find a way out for Obama’s lawyers saying they should characterize DAPA’s grants of benefits just like they characterize its suspension of deportations, namely that the INA’s prohibition on granting work permits to illegal aliens can be suspended as an act of discretion. In effect this turns an “affirmative act” (which is reviewable by the courts) into an “inaction” (which is not). But unfortunately for Somin, this too is wrong and the very person responsible for creating prosecutorial discretion in the immigration context has admitted as much.

In 2000 under the Clinton administration, then-INS Commissioner, Doris Meissner, currently director of the Soros-funded Migration Policy Institute, sent a memo to INS officials on the use of prosecutorial discretion ‘explaining’ that the detailed framework of the INA should no longer be followed. Interestingly, the memo was published in late November when President Clinton was on his way out and when Meissner’s appointment was nearly over. This self-described “guideline” memo ended up serving as the forerunner to the later Morton and Napolitano memos (2011 and 2012, respectively) which purport to apply her theory of prosecutorial discretion on a much wider scale in direct conflict with congressionally-made law.

But attorneys for Texas should note the memo’s claims. Meissner broadly tells INS officials that prosecutorial discretion applies to “law enforcement decisions [about] whether or not … to exercise the coercive power of the Government over liberty or property, as authorized by law in cases when individuals have violated the law” — notice she mentions “individuals”, not “groups” — But it “does not”, she says, “apply to affirmative acts of approval, or grants of benefits, under a statute or other applicable law that provides requirements for determining when the approval should be given.” (emphasis added). If DOJ says DHS’s latest DAPA memo has legal authority, they should at least be forced to reconcile these statements from the Meissner memo.

If Obama claims he’s now simply not enforcing INA’s prohibition on giving job benefits to illegal aliens, what would his excuse be this time? Not enforcing the mandatory deportation provisions of the INA could arguably be supported by his “limited resources” argument (even though there are obvious, cheaper alternatives), but that doesn’t seem to be relevant in the case of granting work permits.

Perhaps Obama could tell the American people that wage rates are just too high and that we need to greatly expand the skill-less labor supply in order to keep the cheap-labor lobbies flush with cash. Many elements in the GOP would no doubt approve. Although many open-borders types on the Hill were banking on the amnesty issue going away soon, Texas’s ongoing injunction-fight will keep it high in the public’s mind likely to the 2016 elections. By then, it’s hoped many Democrats and professional conservatives will have a better understanding of what it’s like being out of a job.