Law & the Courts

Presidential Lawlessness Blocked — for Now

(Nicholas Kamm/AFP/Getty)

The president’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) is the most extraordinary display of presidential lawlessness in recent memory. On Monday, the Fifth Circuit Court of Appeals rightly blocked that lawlessness from proceeding further.

Last November, President Obama announced that he would be halting enforcement of congressional statutes for certain illegal immigrants residing in the United States — some 5 to 6 million, by most estimates — and extending to them work permits, among a number of other benefits. He justified this politically as a necessary response to congressional inaction, and legally as “prosecutorial discretion.”

It was neither, as Texas federal judge Andrew Hanen made clear in February, when he granted an injunction blocking implementation of the action to Texas and 25 other states, which had sued the administration. The president “is not just rewriting the laws,” Hanen wrote; “he is creating them from scratch.” The Obama administration appealed to the Fifth Circuit to stay the injunction, but in May, a three-judge panel refused.

The Fifth Circuit’s 2–1 ruling on Monday upholds that decision and elaborates the legal argument. According to the majority, Texas, at least, has standing to sue, because “DAPA would enable beneficiaries to apply for driver’s licenses, and many would do so,” and so “DAPA would have a major effect on the states’ fiscs, causing millions of dollars of losses.” The opinion affirmed the right of the judiciary to review the action on the grounds that “deferred action . . . is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” And the court suggested that the plaintiffs have “established a substantial likelihood of success on the merits of their procedural and substantive APA claims” — to wit, that the executive action is a “substantive,” not merely “interpretive” rule, and as such failed to comply with the terms of the Administrative Procedure Act.

#share#Naturally, the Obama administration has announced plans to appeal the decision to the Supreme Court. The high court’s 2015–16 term has already begun, but, provided that petitions and briefs are filed promptly, there is a possibility that the justices could hear the case next spring and issue a decision over the summer.

#related#Two courts have found the administration’s legal arguments specious, and the Supreme Court may concur — but opponents of the president’s amnesty should not rely on five justices to save the day. They should pursue any and all available political remedies, including reasserting the House’s power of the purse when it comes to funding the agencies tasked with carrying out the president’s fiat. Of course, ending the president’s abuse ultimately will require electoral success. Republicans should not underestimate the importance of electing a president who will overturn DAPA, and a Congress that will support him. And if DAPA is, in fact, a wildly popular policy, then it can be passed by the people’s duly elected representatives — that is, in the way the system was supposed to work.

The president, frustrated that Congress would not accede to his whims, thought to circumvent that system. But the Fifth Circuit has refused to let him overstep his constitutional boundaries. The Supreme Court, Congress, and the voters should follow suit.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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