Congressional Voices Support Immigration Action at Supreme Court

By Howard Berman and Elizabeth B. Wydra


On Monday, the Supreme Court will hear 90 minutes of argument in U.S. v. Texas, a challenge to the Obama Administration’s immigration initiatives. Make no mistake: though one of those four advocates will claim to represent the House of Representatives, she does not represent every member of the House of Representatives. And she certainly does not represent the whole Congress serving today, much less the prior Congresses that wrote America’s immigration laws.


For evidence of that, look no further than the briefs filed by a host of congressional voices: 225 currently serving Democratic Members of the U.S. House and Senate, as well as a bipartisan group of former Members of Congress who served when the nation’s immigration laws were written. These briefs both agree that the Obama Administration’s immigration initiatives are completely consistent with the immigration laws Congress has passed.


This matters because that’s what this case is about — the laws Congress has passed and whether those laws authorize the executive branch to set immigration enforcement priorities and determine how best to implement those priorities. There is no question that they do.


Recognizing that Congress cannot always foresee every situation that the law must address — and that immigration in particular is a field that touches on foreign policy and humanitarian concerns — Congress has repeatedly given the executive branch the enforcement discretion necessary to determine how best to enforce the nation’s immigration laws. These laws actually direct the executive branch to set enforcement priorities, like the 2002 law that created the Department of Homeland Security, which calls upon the Secretary of Homeland Security to “establish immigration enforcement policies and priorities.” That is exactly what the Administration’s immigration initiatives do.


Indeed, while the President’s critics have accused him of ignoring the law, the Administration’s initiatives are actually one means by which he ensures those laws are effectively enforced. The current Congress has only appropriated enough funds for 400,000 removals. There are nearly 11 million undocumented individuals living in the United States today. In the face of this massive funding shortfall, the Department of Homeland Security, through DAPA (Deferred Action for Parents of Americans), outlined the policy approach the administration would take in setting priorities to effectively enforce the immigration laws written by Congress. This action is basic common sense and consistent with actions taken by every president, Republican and Democrat, going back to the Eisenhower administration.


Given that this case is all about the meaning of the immigration laws passed by Congress, it’s not surprising that the Court would grant a congressional leader’s request for oral argument time. Indeed, the Court often grants such requests as a matter of respect for another branch. But its decision to do so tells us nothing about the Court’s view of the merits in the case. The best place to look for tea leaves when it comes to what the Court is likely to do is its prior decisions. Those precedents plainly support the legality of DAPA. Just three years ago, Justice Anthony Kennedy wrote an opinion, notably joined by Chief Justice Roberts, which noted that “a principal feature of the removal system is the broad discretion exercised by immigration officials” including the decision “whether it makes sense to pursue removal at all.”


Counsel for House Republicans may be the only one speaking on behalf of members of Congress at oral argument on Monday, but as noted earlier, current House Republicans are not the only members of Congress who have made their voices heard in this case. When the Justices decide what to do in the case, they will consider not only what today’s House Republicans have to say, but also what bipartisan current and former members of Congress who support the Administration have said in their legal filings that are already before the Justices. What all of those briefs make clear is simple: while some current Republican members of the House of Representatives may not like the President’s immigration actions, there is no doubt that those actions are lawful.


Howard Berman served in the U.S. House of Representatives from 1983 to 2013.

Elizabeth B. Wydra is president of Constitutional Accountability Center.

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