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Administration's Plea to SCOTUS Is Wrong: Congress Has Repeatedly Limited Executive Discretion in Immigration Policy

The opinions expressed by columnists are their own and do not necessarily represent the views of

Next month, the U.S. Supreme Court is expected to issue a ruling in a case that will have long-term implications for the viability of both immigration policy and the Constitution's separation of powers doctrine. In United States v. Texas, the Obama administration is asking the Supreme Court to lift a lower court's injunction blocking implementation of two sweeping executive programs, Deferred Action for Parents of Americans (DAPA) and an expansion of Deferred Action for Childhood Arrivals (DACA+). These executive actions would grant de facto amnesty and work authorization to an estimated 4.7 million illegal aliens.


Shortly before President Obama announced DAPA and DACA+ in November 2014, the Department of Justice (DOJ) issued a memorandum asserting that the Executive Branch has broad prosecutorial discretion when it comes to immigration enforcement. In the memorandum, Deputy Attorney General Karl R. Thompson wrote, "Congress has long been aware of the practice of granting deferred action, including in its categorical variety ... and it has never acted to disapprove or limit the practice."

That key government claim, which also serves as the basis of the administration's appeal, is factually wrong. Over the past 60 years, Congress acted repeatedly to restrain, limit, or roll back the extra-statutory authority of the president and the executive branch to categorically grant relief from the nation's laws. Every congressional legislative act that addressed the question of agency prosecutorial discretion since 1952 has either rolled back or prohibited the exercise of discretion.

In the Illegal Immigration Reform and Immigration Relief Act of 1996, the most significant immigration legislation enacted in the past 20 years, Congress explicitly intended "to prevent delay in the removal of illegal aliens." But Congress doesn't just spell out what the Executive Branch cannot do; it is also clear about what it must do. The Immigration and Nationality Act (INA) enumerates two mandatory statutory responsibilities to the Secretary of Homeland Security: The "power and duty" to administer and enforce all laws relating to immigration, and the mandatory duty to guard against "the illegal entry of aliens."


In announcing DAPA and DACA+, Secretary Jeh Johnson affirmatively shirked both of those responsibilities and blatantly attempted to substitute presidential policies in the place of a comprehensive system of constitutionally enacted federal laws that define who may enter and remain in the United States and under what conditions.

Not only is there more than a half century of clear legislative intent that must be considered, but also clear legal precedent by the Court itself limiting the president's discretionary authority. In 1952, the Court made clear that the Constitution assigns the immigration-related legislative power to Congress (as the best representative of the people). "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," wrote Justice Felix Frankfurter.

More recently, in 2005, the First Circuit Court of Appeals again rejected the idea of broad discretionary authority on the part of the Executive Branch. In that ruling, the court held 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."

However the eight jurists who will decide United States v. Texas may feel personally about the president's objectives on immigration policy, they are duty-bound to uphold the law. The law is clear: The president does not have the constitutional authority to grant deferred action to 40 percent of the illegal aliens in the United States and, contrary to the administration's assertion, Congress has repeatedly acted "to disapprove or limit the practice."


There is much riding on the outcome of this case. If the Court were to ignore the law and judicial precedent and allow the Obama administration to carry out DAPA and DACA+ it would clear the way for near complete usurpation by the Executive Branch over immigration policy. Such a ruling would emasculate the ability of Congress to set immigration limits and standards, and it would render the courts irrelevant in ensuring the enforcement of immigration laws.

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