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Will Five Justices Give One Man Control of US Immigration Law?

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

President Barack Obama told the truth -- perhaps by accident -- when he spoke last November at a Chicago community center.

Hecklers shouted at him for not doing enough, in their view, to stop deportations. He responded by defending his new policy.


"I understand you may disagree. But we've got to be able to talk honestly about these issues. All right?" said Obama, according to the White House transcript.

"Now, you're absolutely right that there have been significant numbers of deportations. That's true," he said. "But what you're not paying attention to is the fact that I just took action to change the law."

Yes, Obama put it in the first-person singular: 'I just took action to change the law."

What law did Obama change?

Homeland Security Secretary Jeh Johnson had announced that DHS was expanding its Deferred Action for Childhood Arrivals program and creating a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents.

The former granted "lawful presence," work authorization and the ability to get Social Security Numbers to illegal immigrants who came to the United States as minors. The latter granted these things to illegal immigrants who were the parents of citizens or legal permanent residents.

An estimated 4.3 million illegal immigrants would be eligible for DAPA.

Twenty-six states, including Texas, sued to stop Obama from unilaterally making this change in the law.

The administration argued in federal court that this policy Obama himself had described as a "change" in the law was in fact merely an exercise of prosecutorial discretion.

But an act of prosecutorial discretion is discrete and finite: A prosecutor decides not to press charges against a person for a particular offense that has already been committed. The prosecutor does not say: I hereby license you to break that law with impunity in the future.


In a brilliant opinion published in February, U.S. District Judge Andrew Hanen explained that "prosecutorial discretion" did not properly describe what the Obama administration was trying to do with DAPA.

"Instead of merely refusing to enforce the INA's (Immigration and Nationality Act) removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel," said the judge. "Absent DAPA, these individuals would not receive these benefits."

"Exercising prosecutorial discretion and/or refusing to enforce the law does not entail bestowing benefits," he wrote. "Non-enforcement is just that -- not enforcing the law. Non-enforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations."

Hanen pointed out -- referring to Obama's speech in Chicago -- that Obama himself had taken credit for changing the law.

"The government must concede that there is no specific law or statute that authorizes DAPA," said the judge. "In fact, the president announced it was the failure of Congress to pass such a law that prompted him (through his delegate, Secretary Johnson) to 'change the law.'"


"The DHS secretary is not just rewriting the laws; he is creating them from scratch," said Judge Hanen.

This week, the majority of a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit echoed Judge Hanen's reasoning and upheld the injunction he imposed on Obama's "change" of law.

The administration immediately announced it would appeal this ruling to the Supreme Court.

This year, five members of the Supreme Court decided that there is a constitutional right for two people of the same sex to marry -- and, thus, that children have no right to a mother (or a father).

Last week, the Supreme Court decided it would take up the case the Little Sisters of the Poor are fighting against the Obama administration. In this case, five justices could decide that the administration can force Catholic nuns -- and other Christians -- to cooperate in its plan to deliver abortion-inducing drugs and devices through employer-based health care plans.


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