On April 18, the U.S. Supreme Court will hear arguments in United States v. Texas. The Obama administration is seeking to have the high court lift a lower court’s injunction preventing two programs that would grant de facto amnesty and work authorization to about 4.7 million illegal aliens (approximately 40 percent of the estimated illegal alien population) from going into effect.
The two programs, Deferred Action for Parents of Americans (DAPA) and an expanded version of Deferred Action for Childhood Arrivals (DACA+), were announced by President Obama in November 2014, just two weeks after voters handed his party a stinging defeat in the midterm elections. In announcing these programs, the administration asserted broad discretionary authority to not just refrain from enforcing immigration laws against entire classes of violators, but also to grant them permission to live and work in the U.S., despite clear statutory prohibitions against both.
When the Republican-led Congress made it clear that they lacked the political courage to defend either their plenary constitutional power to make immigration laws, or to block funding necessary for the president to carry out the amnesty programs, 26 states, led by Texas, stepped into the breach and filed a lawsuit seeking to prevent the administration from implementing these amnesty programs. In February 2015, just days before DAPA and DACA+ were scheduled to go into effect, a federal judge agreed that the states had standing to sue and the administration had violated Administrative Procedures Act, and issued an injunction. That injunction was subsequently upheld by the Fifth Circuit Court of Appeals.
What is at stake in this case is more than just the integrity of our nation’s immigration system, namely the legitimacy of laws that restrict immigration in order to protect the social, economic and security interests of the American people. Even more importantly, what hangs in the balance is the integrity of the Constitution’s Separation of Powers Doctrine which, for more than two centuries, has prevented the consolidation of power in the hands of a single individual.
In issuing the original injunction, Federal Judge Andrew Hanen opined that the states were on solid ground in contending that the president overstepped his constitutional authority. Indeed, every congressional legislative act that addressed the question of prosecutorial discretion in immigration enforcement since 1952 has either rolled back or prohibited the exercise of discretion.
Judicial precedent limiting prosecutorial discretion in immigration matters is also clear. In a 1952 Supreme Court decision, Justice Felix Frankfurter wrote that, “The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, [and] the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress.” The Court reaffirmed that position in 2005, asserting that “Congress did not place the decision as to which applicants for admission are placed in removal proceedings into the discretion of the Attorney General, but created mandatory criteria.”
If clear legal precedent, or even the clearly enunciated intent of Congress in 1996 that legislation enacted that year was meant “to prevent delay in the removal of illegal aliens,” then the Court should consider this: If a president has the power to nullify laws enacted by the Legislative Branch by simply refusing to enforce them or, as President Obama is attempting to do, by substituting his own policies and programs in their place, then the separation of powers deliberately written into the Constitution by our founders, are rendered meaningless.
Even those justices who might agree with the president’s views on immigration policy generally should appreciate the precedent-setting decision they would be making by allowing the president to run roughshod over the constitutional Separation of Powers doctrine. It would open the door to future presidents asserting virtually unlimited authority to carry out politically-driven policies without regard for the laws.
When the justices render their ruling in United States v. Texas they will not only be deciding whether there will be any meaningful limits on immigration in the future, but also whether there will be any meaningful limits on executive power. Let’s hope they decide wisely, because the stakes do not get much higher than that.