Late in the day on November 9, the U.S. Court of Appeals for the Fifth Circuit dealt the Obama Administration a serious blow. It upheld the Preliminary Injunction of the U.S. District Court in Texas which blocked Obama’s executive action to grant amnesty to millions of illegal aliens under the plan known as DAPA. Read the court’s opinion here.
Interestingly, the Fifth Circuit opinion quotes back to the Obama Justice Department President Obama’s own statement that since Congress would not act, he would change the law by himself:
“Indeed, as the district court recognized, the President explicitly stated that ‘it was the failure of Congress to enact such a program that prompted him . . . to “change the law.”‘… At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes. And the dissent attempts to avoid the impact of the President’s statement by accusing the district court and this panel majority of ‘relying . . . on selected excerpts of the President’s public statements….’” [at 65]
The problem began in November 2014, with the Obama Department of Homeland Security issuing various “policies” designed to grant “lawful presence” to about 4 million illegal aliens meeting certain criteria, who otherwise would be subject to deportation. The Administration claimed it was simply using “prosecutorial discretion” — choosing not to enforce the law against certain persons. The challenge by 26 states asserted that President Obama opposed, and was simply refusing to enforce, the nation’s immigration laws.
The district court issued a preliminary injunction against DAPA. Earlier this year, a panel of the Fifth Circuit had refused the Administration’s request to stay that injunction. Monday’s decision upheld that preliminary injunction.
Six months ago, on May 11, 2015, our firm filed an amicus brief in the Fifth Circuit supporting the challenge brought by the State of Texas and the other states against the Obama Administration’s misuse of “executive action” (“DAPA”) to implement provisions of the DREAM Act that Congress refused to enact. (Read our brief here.)
Our brief argued first that the states have standing to sue under a theory of “abdication standing.” Under this theory, if the federal government claims sole authority to act in a given area (such as immigration law), to the exclusion of the states, but then fails or refuses to act in that area, the states may challenge that abdication of authority in court.
Next, we argued that DAPA’s grant of immunity from prosecution to millions of illegal aliens constituted an exercise of a type of monarchical prerogative power to dispense or “waive” the law with respect to certain persons. The U.S. Constitution recognizes no such authority of the President to choose to exempt certain favored persons from the nation’s immigration laws.
As to the constitutional issues, our brief argued that, in implementing DAPA, the President acted contrary to both the express and implied will of Congress. First, Congress had explicitly legislated that illegal aliens who are unlawfully present should be removed. Second, Congress had refused several times to enact the DREAM Act, the same provisions which the President seeks to implement here by executive action. Third, while Congress has at times explicitly granted deferred action to various small groups of aliens, that is entirely different than the general amnesty to millions the President seeks to give here. When opposing Congress’ will, the Supreme Court has said that the President’s powers are “at their lowest ebb.”
Our brief also argued that, by refusing to enforce the law, the President is exercising what could be considered a post-enactment veto power. However, the Constitution grants him only the right to veto a law before it is enacted. Once a bill becomes law, however, the Take Care Clause of the Constitution requires the President to enforce it unless it is unconstitutional.
Finally, our brief discussed the enormous financial strain that millions of legalized illegal aliens will place on the Social Security and Medicare systems, and yet pay little in taxes while receiving much in benefits.
This is a case that almost certainly will be taken up by the U.S. Supreme Court. In it, the Fifth Circuit panel split 2-1. In the majority were Reagan appointee Judge Jerry E. Smith, and G.W. Bush appointee Judge Jennifer W. Elrod. Dissenting was Carter appointee Judge Carolyn D. King. The two opinions totaled 124 pages.
Our brief was filed on behalf of Citizens United, Citizens United Foundation, English First Foundation, English First, TREA Senior Citizens League, U.S. Justice Foundation, The Lincoln Institute for Research and Education, Abraham Lincoln Foundation for Public Policy Research, Inc., U.S. Border Control Foundation, Policy Analysis Center, Institute on the Constitution, and Conservative Legal Defense and Education Fund.
Copyright © 2015 William J. Olson, P.C. All rights reserved.
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