Court on Immigration: “It is Congress, and Congress alone"

• President Obama said 22 times that he had no authority to unilaterally change immigration laws.

• After the election last November, he did an about-face on this position when he announced executive actions to change immigration law.

• Last week, a federal court found the president had over-stepped his bounds saying “It is Congress, and Congress alone, who has power under the Constitution to legislate in the field of immigration.”

President Obama has spoken for years about his obligation to enforce immigration law and about limits on his power. The president abandoned those principles last November when he told federal agencies to change the law. Last week, a federal district court agreed with the position the president had taken 22 times before November: the executive cannot unilaterally rewrite immigration law.

“There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as president.”

– President Obama, 3/28/2011

A History of Bypassing Congress

The Obama administration revised U.S. immigration law by taking executive actions to direct government agencies to selectively enforce immigration laws. Because these executive actions have the force of law, they effectively overturn congressionally ratified statutes. Last fall, President Obama expanded the eligible population of immigrants who would not be subject to deportation and made available work authorization for immigrants with newly permitted residency status.

“I just took an action to change the law.”

– President Obama, 11/25/2014

Parts of the Deferred Action for Parents of Americans and Lawful Permanent Residents were set to begin on February 18. Twenty-six states challenged the federal government in court. Last week, just days before the DAPA program was set to begin, a federal district court issued a preliminary injunction blocking the program.

What Did the Court Say?

The court found that at least one of the states will suffer injury caused by the actions of the government, and it is likely the states will prevail when the case goes to trial. While that trial is pending, the court blocked Secretary of Homeland Security Jeh Johnson from implementing “any and all aspects or phases” of the DAPA program. 

In temporarily halting the president’s plans, the court made the following critical findings:

• The states would be harmed because they would be compelled by federal law to issue drivers licenses to the immigrants. The states would also be obligated to pay health care and unemployment costs of the immigrants who take advantage of the president’s change in the law.   

• “It is Congress, and Congress alone, who has power under the Constitution to legislate in the field of immigration.” The case was mostly based on statutory and administrative grounds, so this constitutional point was an important observation by the court.

• The type of deferred action relied upon by the Obama administration was not created by Congress. The court found that the DAPA program created a new program of deferred action that was previously debated and rejected by Congress.

• The president’s plans include no real acts of prosecutorial discretion. “Despite the DAPA memorandum’s use of phrases such as ‘case-by-case basis’ and ‘discretion,’ it is clear from the record that the only discretion that has been or will be exercised is that already exercised by Secretary Johnson in enacting the DAPA program and establishing the criteria therein. That criteria is binding.”

• “The DAPA program clearly represents a substantive change in immigration policy.” The program is designed not only to provide legal status, but to also confer the right to work and the right to receive government benefits. 

• The preliminary injunction was necessary because any subsequent finding that DAPA was unlawful would result in the state challengers facing the impossible task of retracting benefits already conferred. Since no benefits have been conferred under this program, the court is merely preserving the status quo.

Where Does the Case Go Next?

Yesterday, the administration requested an emergency stay of the district court’s injunction. Given the court’s finding that the states would suffer irreparable harm if the president’s immigration plans proceed, it is unlikely the stay will be granted. Meanwhile, the Department of Justice also filed a separate appeal with the U.S. Court of Appeals for the Fifth Circuit. If the appeals court agrees with the states, the administration would probably ask the Supreme Court to hear the case. If the appeals court disagrees with the lower court – and allows DAPA to proceed – the states would probably ask the Supreme Court to take up the question. The actual trial on the merits of the case could begin at any point along the way, and the result of that case could also be appealed.