Obama’s legal team has its history all wrong.
Judge Andrew Hanen’s leveling of the Obama administration’s executive decree on amnesty is a carefully reasoned analysis of the various legal violations put before him by Texas and the other plaintiff states. In particular, the argument made by the Department of Justice (DOJ) for the legality of the Deferred Action for Parental Accountability (DAPA) program — which lets illegal aliens with children who are U.S. citizens obtain “deferred action” (relief from deportation) and work permits — rested heavily on the purported scope of the Department of Homeland Security’s discretion in enforcing immigration law. The DOJ placed much emphasis on Congress’s supposed acquiescence to past uses of deferred action. This is one area where Judge Hanen could have gone much further.
Obama’s Office of Legal Counsel (OLC), in its own opinion on DAPA — from which DOJ attorneys in the Texas case borrowed heavily — stated: “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.” (Emphasis added.) This statement is breathtakingly false, and anyone making a cursory review of past deferred-action programs will find that DOJ’s assertion that DAPA aligns with past practice is paper-thin. When Judge Hanen fleshes out his analysis in his forthcoming opinion on the merits of the case, it is to be hoped that he will distinguish DAPA from previous programs, in order to end this fantasy of past acquiescence.
Judge Hanen’s coverage of the acquiescence issue can be summarized by his conclusion that “past practice by immigration officials does not create a source of power for the DHS to implement DAPA.” President Obama, along with certain globalist academics, has been hammering away at “congressional acquiescence” in the mainstream media for some time — even claiming that President Reagan would have blessed Obama’s amnesties. The Immigration Reform Law Institute (for which I work) filed a friend-of-the-court brief in support of Texas, a brief that sought to rebut these claims by describing and distinguishing each program in detail.
To be sure, the executive branch has made many attempts in the past to push through mass deferrals of deportation (although on nothing remotely approaching Obama’s scale). Each effort has been “justified” under the rubric of “prosecutorial discretion.” Congress, however, has consistently responded by restricting and rolling back the executive’s purported “exercise of discretion” and, in turn, has implemented ever more comprehensive and detailed statutory guidelines on how and when illegal aliens are to be removed. In its response to Texas’s complaint, DOJ completely failed to explain how these “past precedents” compare to DAPA — and with good reason.
Obama’s revisionist take on Reagan is in reference to both the Immigration Reform and Control Act (IRCA) of 1986 and its companion Family Fairness program of 1990, neither of which worked. First, IRCA was a legislative act, passed by Congress, so it should be struck from DOJ’s argument outright. The Family Fairness program, mentioned prominently in DOJ’s second reply, granted “voluntary departure” (rather than deportation) to a few thousand spouses and children of IRCA recipients who had been left out of IRCA’s ambit due to an oversight. Congress sought to correct this mistake by making provisions for this class in the Immigration Act of 1990; in the interim (of several months), members of this class, despite being illegal, had their deportation proceedings stayed. The program’s small scale and congressional approval make it the polar opposite of both DACA (Deferred Action for Childhood Arrivals) and DAPA.
Another exercise of discretion that DOJ mentions is the executive’s “parole authority.” For years, this provision of immigration law had been used to grant parole to whole categories of refugees — in violation of the Immigration and Nationality Act (INA) of 1952, which recognizes parole only on a case-by-case basis. The Second Circuit once described the mass use of parole as a way for the executive to “circumvent congressionally established immigration policy.” Congress enacted the Refugee Act of 1980 in order to curb this abuse.
Another example is the ongoing Temporary Protected Status (TPS) program. Enacted in 1990, the program is essentially a temporary refugee program applied to certain national groups that suffer (genuine) “humanitarian crises,” such as a natural disaster in their home country. TPS was specifically put in place to overturn the “extended voluntary departure” policy, which the executive had created out of whole cloth. To rein in the executive, Congress created TPS as an “exclusive remedy” in the area of nationality-based deportation relief.
As further “proof” of Congress’s “acquiescence,” DOJ cites a grant of deferred action — by U.S. Citizenship and Immigration Services (USCIS) — to 5,500 foreign students who would have been unable to comply with the requirements of their visas because their schooling was affected by Hurricane Katrina. But not only was this action later sanctioned by Congress; these students had been in the country lawfully.
DOJ also cites the Violence Against Women Act, in which illegal-alien spousal-abuse victims were allowed to have lawful status and, before their visas became available, could be granted deferred action. But here, much as in with the Family Fairness program, recipients had to have the immediate potential of becoming legal, by being the spouse or child of a U.S. citizen or permanent resident.
The strangest comparison DOJ makes is with DACA, a program that is at least as legally questionable as DAPA. DAPA applies to parents of U.S. citizens — in violation of INA § 201(b)(2)(A)(i), which prohibits citizen-children from sponsoring their parents — and was based on the sanctimonious pretext of “family unity.” DACA, however, has no such element. As law professor Josh Blackman points out, the OLC has admitted that DACA, which allows deferred action and work permits for illegal immigrants who arrived in the U.S. as children, was (as set forth in an OLC memo) “predicated on humanitarian concerns that appeared less particularized and acute than those underlying certain prior class-wide deferred action programs.” (Emphasis added.) It should be also noted that OLC’s opinion conveniently avoided the fact that the DREAM Act (DACA’s doppelgänger) was rejected 24 times by Congress; the OLC merely stated that it refused to “draw any inference regarding congressional policy from [those] unenacted bills.”
Judge Hanen’s opinion notes that the plaintiff states “go to great lengths to distinguish past deferred action programs from the current one.” He should develop this point further — to put DOJ and appellate judges on notice.
— Ian Smith is an attorney in Washington, D.C., and blog contributor for the Immigration Reform Law Institute.