Yesterday, 181 of the 188 Democrats in the House filed a friend-of-the-court brief in support of the federal government’s attempt to appeal Judge Hanen’s recent amnesty-injunction. The Democrats, identifying themselves in the letter as “representatives of diverse communities,” attempt to set out a legal argument as to why Judge Hanen’s carefully reasoned, 123-page opinion should be set aside. The brief follows (and largely mimics) an open letter published last month by four of the most prominent open-borders law professors in the country.
From the outset, the brief should strike some as curious. Most of its signers, of course, voted for the DREAM Act, a bill that Obama pushed through by fiat after it was rejected for the 24th time by a majority in Congress. By casting a vote in the House for amnesty, they’ve demonstrated that it is they, as members of Congress, who have the sole authority in setting immigration policy. As law professor Nicholas Rosenkranz said in testimony before the House Judiciary in 2013 (one of the brief’s signers, Rep. John Conyers, was Ranking Member at the time), “[DACA] has a distinctly legislative character. It is not a decision  in a particular case  that enforcement is not worth the resources; rather it is a blanket policy which exactly mirrors a statute that Congress declined to pass.”
Still, the Democrats in their brief allege that “Congress granted the DHS Secretary with complete discretionary authority to enforce the Immigration and Naturalization Act.”
But if the Democrats truly thought it was legal for the Secretary and Obama to push through DACA and then DAPA, why did they bother voting for the DREAM Act in the first place? If the Secretary already has the authority to issue deferred action benefits to anyone he pleases, why would Congress go through the legislative process of debating whether or not to give him that authority?
And if that authority is truly so widespread, why doesn’t the Secretary apply blanket amnesty to all 12 million illegal aliens in the country instead of the 1.8 million done under former Secretary Napolitano in 2012 and the 4.1 million Secretary Johnson is purporting to do now. Either the signers of yesterday’s brief aren’t the sharpest cohort of House Democrats we’ve ever seen or they’re the most cynical. Or both.
Elsewhere, the Democrats attempt to justify DACA and DAPA by repeating the well-worn argument that “Due to limited resources, DHS … cannot respond to all immigration violations or remove all persons illegally in the United States.” But as Professor Rosenkranz stated to Rep. Conyers and the House Judiciary committee, “it is quite clear that the President is not merely trying to conserve resources. After all, his Solicitor General recently went to the Supreme Court to forbid Arizona from helping to enforce the INA.” Letting states, like Arizona, enforce federal legislation would of course cost DHS zero resources.
As for the House Democrats’ specific legal arguments, the brief says the president’s grants of amnesty are consistent with previous DHS memos. But any first year law student knows that citing as legal precedent an agency decision that hasn’t been scrutinized by judicial review is fairly flimsy lawyering to say the least. That a previous memo said mass amnesty is OK doesn’t make a newer version of that memo OK. Whether it actually is OK is what the federal courts are now trying to decide. The Justice Department made the same error in their briefs in the Texas lawsuit when, strangely, they cited the DACA program as a legal precedent for DAPA.
But the biggest error the Democrats make in their brief violates the most basic of legal principles. Like the group of four law professors who recently in an open letter condemned Judge Hanen’s injunction order as “deeply flawed”, the Democrats misapply and take out of context certain Supreme Court precedent in order to push their puddle-deep legal arguments for DAPA. As every attorney learns in their first week of law school, you cannot base an entire legal argument on a line from a court decision (mere dicta in legalese) that doesn’t form a part of the case’s actual ruling.
Law professor Peter Margulies recently wrote a law review article that tears into Obama’s Office of Legal Counsel for doing just that in their application of Arizona v. United States in their made-to-order legal justification for DAPA. That 2012 decision dealt with an Arizona immigration statute that was largely pre-empted by federal law. The Democrats cherry-pick the exact same line the OLC used from the case’s 76-page decision, namely Justice Kennedy’s comment that although, “Congress has specified which aliens may be removed from the United States and the procedures for doing so, … [a] principal feature of the removal system is the broad discretion exercised by immigration officials,” including their discretion to “decide whether it makes sense to pursue removal at all.”
But as Margulies notes, “[r]eading this language broadly may create the impression that DAPA falls within immigration officials’ ambit of discretion … [h]owever, the language cited does not expand the scope of congressional delegation to immigration officials.” Justice Kennedy, Margulies rightly says, was merely observing, “that the Framers were wary of state interference in the foreign affairs of the new republic,” and that a slight level of “[f]ederal discretion over priorities in individual cases could smooth out these bumps in the road”; bumps caused by states creating disparate immigration policies.
“All of Justice Kennedy’s discussion,” says Margulies, “including his statement that federal officials had to ‘decide whether it makes sense to pursue removal at all,’ reflects this concern about the deleterious effects of federal-state clashes on immigration policy.” (emphasis mine). He concludes by saying, “In warning about the danger of state-commandeering of national priorities, Justice Kennedy did not address the boundaries of executive discretion when Congress – not the states – sought to constrain that discretion.”
Given the similarities in the legal arguments of all these parties (the Democrat signatories and their counsel, the four law professors, the Office of Legal Counsel) as well as the Justice Department’s Civil Enforcement division in their battle with Texas, it’s safe to say they’re all colluding in their assault on our immigration laws. The Immigration Reform Law Institute is trying to find this out and has requested through the Freedom of Information Act records of communications between some of these groups. What’s going on here then is a battle of the amnesty-enabling class against the American people. Deciding the winner will likely be up to the Supreme Court.