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Even Conservatives Agree on Obama’s Immigration Powers. Will the Supreme Court?
Since November 2014, when Homeland Security Secretary Jeh Johnson announced the Obama administration’s immigration initiative—Deferred Action for Parents of American Citizens and Lawful Permanent Residents (DAPA) — conservative politicians have denounced it not just as bad policy, but illegal: an unprecedented executive “power grab,” “trampling on the Constitution,” “counterfeiting immigration papers,” “unilaterally rewriting laws,” even flouting the president’s constitutional duty to “take care that the laws be faithfully executed.” The Supreme Court, which hears Texas’s challenge to DAPA on April 18, will decide whether there’s any legal basis for this rhetoric. But that challenge faces a host of heavyweight conservative authorities, of recent as well as long-established vintage, strongly supporting President Barack Obama’s position that deferring removal for parents of citizens and permanent residents for three years, subject to individual exceptions on a case-by-case basis, fits within the ample enforcement discretion prescribed by immigration statutes and the Constitution.
I recently glimpsed this erosion of enthusiasm while testifying, at the request of the Democratic minority on the House Judiciary Committee, at a poorly attended March 15 hearing before the committee’s Task Force on Executive Overreach. Iowa Representative Steve King, the task force’s chairman, railed against the “abuse of executive power.” But as the hearing wore on, Republican members merely perfunctorily pushed back against Democrats’ citations of the breadth of discretionary enforcement authority, as in the 2002 Homeland Security Act—signed by President George W. Bush and enacted by lopsided House and Senate majorities (including Republican members in the hearing room). In terms as direct as it is possible to draft, the act commands DHS to “establish immigration enforcement policies and priorities.” After contrasting this and other Republican-supported provisions with “overheated rhetoric” condemning “the president’s immigration actions,” California Democrat Zoe Lofgren observed, “If you don’t like what’s happening, look in the mirror. It’s what we asked him to do.” To this, Raul Labrador, an Idaho Republican and anti-immigration hard-liner, candidly responded, “I completely agree that sometimes Congress has punted and has given the executive too much authority. ... It’s just we don’t want to write precise laws, so we write these broad laws and then we give the executive all this power, all this authority.”
In thus acknowledging broad immigration enforcement discretion, Labrador was in good conservative company. Most authoritatively, on June 25, 2012, en route to striking down draconian anti-immigrant restrictions enacted in Arizona, Reagan appointee Justice Anthony Kennedy, joined by George W. Bush appointee Chief Justice John Roberts and four colleagues, spelled out a solid foundation for DAPA. “A principal feature of the removal system,” the Court held, “is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” The opinion went on to note that DHS must consider many factors in deciding when removal is appropriate, including both “immediate human concerns” and “foreign policy.”
Prominent conservative legal scholars and experts know that, as George Mason scholar and Obama critic Ilya Somin wrote at Volokh Conspiracy, “Obama’s decision to defer deportation is in line with those of past presidents, and well within the scope of his authority.” In Washington Examiner, Shikha Dalmia reminded “conservatives outraged” at the administration’s initiative that “whether they like it or not, existing immigration laws give the president vast discretion to temporarily legalize an unlimited number of foreigners.” University of Virginia professor Saikrishna Prakash, a former law clerk for Justice Clarence Thomas and a prominent specialist on separation of powers and presidential authority, has unequivocally stated that “President Obama has not suspended or dispensed any law” and “not violated his faithful execution duty.” In the same vein, on Volokh, Case Western Reserve Professor Jonathan Adler—architect of the potentially crippling challenge to ACA tax credits rejected last year in King v. Burwell—explained that, in “[i]mmigration law ... Congress has given the executive wide latitude.” (Adler signed a friend-of-the-court brief supporting the anti-DAPA challengers’ standing to bring their suit, but not their claim, on the merits that DAPA is unlawful.)
To get around the roadblock presented by the executive branch’s irrefutably broad immigration enforcement authority, anti-DAPA advocates have come up with three principal arguments. At every turn, these forays hit walls firmly entrenched in conservative soil.
First, DAPA opponents contend that DHS lacks authority to “categorically” defer removal of parents of citizens and permanent residents (as long as they lack criminal records or other indications of threats to the public interest) as a class. But, as Professor Prakash has caustically observed, the president “can announce rules to be used in the exercise of discretion, rather than leaving enforcement to chance or to the varied enforcement priorities of individual immigration officers.” Specifically, DAPA’s prescription of deferred action treatment for particular groups is hardly novel. As the late Justice Antonin Scalia wrote in a 1999 decision, “the Executive has discretion to abandon” deportations, noting that at the time the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was enacted, the Immigration and Naturalization Service (INS) “had been engaging in a regular practice (which had come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons or simply for its own convenience.” DAPA opponents assert that such “deferred action” initiatives were too small in scale to serve as precedent for Obama’s actions. But the Reagan and George H.W. Bush administrations created a functionally equivalent Family Fairness program, designed to protect from deportation what the government estimated as approximately 40 percent of undocumented aliens in the U.S. at that time—the same percentage eligible for deferred action treatment under DAPA.
Second, DAPA opponents assert or insinuate that the program is defective because its enforcement priorities and techniques are codified in writing. But in thus making its approach transparent, DHS has specifically followed directions from Congress, including prominent Republicans. In 1999, 28 members of the House, including four former Judiciary Committee chairs (three of them Republicans), sent to Attorney General Janet Reno and INS Commissioner Doris Meissner a letter expressing concern that increased funding had inappropriately been used to deport “law-abiding” legal permanent residents and family members of U.S. citizens. The letter went on to state that “INS District Directors ... require written guidelines, both to legitimate in their eyes the exercise of discretion and to ensure that their decisions to initiate or terminate removal proceedings are not made in an inconsistent manner.” INS followed up with a public written delineation of agency removal priorities to be applied in individual cases. After 2002, when INS became absorbed in the new DHS, subsequent regimes continued to refine that written guidance, leading eventually to the Obama administration’s DAPA program.
Finally, opponents impugn DAPA because the new program authorizes its beneficiaries to apply for work authorization. But the authority for deferred action recipients to work, enroll in Social Security, and receive certain other work-related benefits comes not from DAPA, but from Reagan administration regulations subsequently endorsed by lopsided bipartisan congressional majorities in 1986 legislation. Shortly thereafter, the Reagan administration denied a request to repeal its employment authorization regulation and it has since then been available to, and repeatedly used by, recipients of deferred action treatment, such as those covered by DAPA.
In short, not only is Texas’s challenge to DAPA an overtly partisan effort to upend a decades-old bipartisan consensus on immigration policy, but its lawyers’ arguments flout the legal framework codifying that consensus. Given recent decisions by Kennedy and Roberts endorsing that framework and opposing partisan misuse of the courts, good reason exists to expect the Supreme Court to reject this lawsuit and relegate the immigration wars to the political process, where they belong.