Believe it or not, President Obama says his executive action on immigration isn’t actually about immigration — it’s about enhancing national security. In order to help Homeland Security agents quickly distinguish dangerous immigrants from those who pose no threat, the president had to grant, he claims, quasi-legal status to 5 million immigrants. Once the immigrants sign up, his argument goes, they will undergo background checks and receive a biometric ID, making it a lot easier for DHS agents to identify them. Oh, and by the way, because halting millions of deportations was not reason enough to coax immigrants to “come out of the shadows,” the president will approve virtually every single applicant for work authorization, Social Security benefits, and even the earned income-tax credit, as an “incentive” to sign up. It’s all part of keeping our nation secure.
Remarkably, this is exactly how President Obama legally justifies his DAPA (Deferred Action for Parental Accountability) program.
This Rube Goldbergesque contortion of logic, premised on a “complete abdication” of the law, is the best defense the Justice Department can muster for why this policy should go into effect immediately. If you believe that this was the real reason behind DAPA — and not a scheme to implement an immigration policy that Congress expressly rejected — then I have a bridge to sell you. While Congress generally has broad latitude in choosing the means to accomplish legitimate policy goals, the executive, when acting unilaterally to disregard the law, should not receive such deference. This national-security smokescreen should be rejected by the courts.
In February, Judge Andrew Hanen, in Brownsville, Texas, put DAPA on hold, finding that the Obama administration failed to solicit comments from the public before implementing the policy, as the law requires. After nearly a month of dithering, last week the Justice Department finally filed an appeal with the Fifth Circuit Court of Appeals in New Orleans. In its brief, the government argues that Judge Hanen’s ruling “undermines the Secretary’s authority to enforce the Nation’s immigration laws” and prevents DHS from “marshalling its resources to protect border security, public safety and national security, while also addressing humanitarian interests.” The government argues that the appellate court should allow the administration to implement DAPA immediately — otherwise, our national security will be in jeopardy. This position is entirely false, as a matter of law and logic. Absolutely nothing in Judge Hanen’s ruling prevents DHS from protecting border and national security.
Last week, Judge Hanen held a hearing about the government’s failure to disclose that an additional 180,000 immigrants were given deferred action between November and February. These new grants of deferred action for three years, rather than the two years the government had previously issued, came as a surprise, since DOJ told the court that the expanded program would not go into effect until February 19. During the arguments, Judge Hanen made abundantly clear that DHS was in no way prevented from improving national security while his order was in place. The response from Kathleen Hartnett, the Obama administration’s lawyer, reveals that national security was always a smokescreen, and not the real justification for DAPA.
First, Hanen clarified that the government was actually citing the national-security Rube Goldberg trap as a justification for DAPA. As Hanen summarized, if a DHS agent “stops a person, they can show them their card, and they’ll know that they don’t have to pursue that person.” Is that right, the judge asked? Harnett replied, “Yes, your Honor.”
Hanen parried with a devastatingly simple question: “Why aren’t you doing that now? I didn’t enjoin you from doing that.” He noted that the government could offer some other form of identification that would allow aliens to prove they are not dangerous, but without granting them work authorization and myriad other benefits. “There’s nothing that’s stopping the Department of Homeland Security from saying: All right . . . We’re going to do a background check on you, and we’ll give this card that says for three years we’re not prosecuting you.” Hanen, who graduated first in his class from Baylor Law School, stated the issue bluntly: “I mean, y’all could do that right now.”
Hartnett conceded that the administration could do that as an “alternative,” but “that was not the judgment of how to do the program.” Judge Hanen was not persuaded, and replied that “even with my injunction in place, you could satisfy all those security needs.” More specifically — and here comes the rub of DAPA — the government could protect national security “without issuing legal presence and without giving [immigrants] tax benefits and employment authorizations and Social Security.” Such a regime would have far fewer constitutional and procedural difficulties.
Hartnett’s answer to Hanen’s commonsense alternative was striking: The president chose to offer work authorization to millions to “provide an incentive for people to come out and identify themselves.” The lawyer repeated that “work authorization is a large incentive for getting people to be able to come out of the shadows, as it said, and to identify themselves.” In other words, an assurance to not deport an immigrant who is here unlawfully was not a sufficient justification — it was necessary for the president to hand out 5 million new work authorizations. And remember, this entire regime was created to provide an administrative convenience to DHS agents who encounter immigrants and have to decide whether to investigate them or not. As an aside, any immigrant with a criminal background can be easily identified by checking his or her fingerprints — which takes a few moments.
Judge Hanen was incredulous. He questioned why “just an offer to stay in the country without being prosecuted” was not enough, but that the government has “to give them some extra incentive?” Hanen added, “I mean, we’re basically bribing the people to stay in the country legally?” Though Hartnett tried to distance herself from this obvious point, she inevitably conceded it. She asserted that the “law-enforcement officials that run the Department of Homeland Security had made the judgment that [DAPA was] the right way to get people to come out [and] account for themselves.” But what about the simpler alternative where immigrants are not “bribed”? The government lawyer responded that “I think the judgment has been made that that’s the way that the program would best work.”
Since the seminal case of McCulloch v. Maryland, authored by Chief Justice John Marshall, Congress has had wide latitude when choosing how to accomplish its objectives: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” In other words, courts defer to Congress when it chooses one approach over another to accomplish legitimate policy goals.
But we should not lose sight of the fact that DAPA is not an act of Congress, but a unilateral exertion of executive power. Rather than representing the wisdom of Congress — the branch that can set policy — DAPA amounts to a brazen effort to rewrite the law in the president’s own image. The implausible “national security” argument — which is entirely at odds with anything Congress has ever thought of — solidifies the gap between the executive and the legislative branches.
If Congress were to pass a statute that provided work benefits to undocumented immigrants to promote national security, some might doubt its efficacy, but the judiciary would have no license to question its wisdom. DAPA presents an entirely different calculus. To determine whether the president is adhering to his constitutional duty to “take care that the laws be faithfully executed,” we must determine whether the president is acting in good faith to comply with the laws, or deliberately deviating from them to achieve a contrary policy. The president’s own flimsy arguments in court, which crumble under the laxest scrutiny, demonstrate what DAPA is really about. The judiciary need not defer to this tendentious position, and should recognize it for what it is — a mere smokescreen to allow the president to write his own laws.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law, Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare. He joined an amicus brief in support of the challengers in Texas v. United States on behalf of the Cato Institute. He blogs at JoshBlackman.com.