Last June, in the lead up to the federal elections, President Obama brushed aside Congress and proceeded to grant amnesty to an estimated 2 million illegal immigrants under the “Deferred Action Against Child Arrivals” (DACA) program. The move was resoundingly condemned as executive overreach by constitutional law professors. On Tuesday, a District Court judge in Texas agreed and Obama’s Congressionally-defying act will now likely be struck down.
The challenge was brought by eleven officials of Immigration and Customs Enforcement (ICE), including Chris Crane, leader of ICE’s 7,600-member. Crane has been increasingly vocal about being shut out of the current amnesty debate monopolized by the Gang of Eight and the White House. Instead, groups like La Raza and the SEIU have choice seats at the negotiating table.
Although not a total victory for Crane and company, District Court Judge Reed O’Connor said there is a strong likelihood Obama’s decree was illegal and asked for additional arguments from both sides before he could ultimately makes his decision next month, but only in relation to one outstanding jurisdictional issue. The merits of Crane’s numerous claims against the DACA program will likely be upheld.
Central to the case was a 2011 DHS memo which asserted that ICE agents must now exercise so-called “prosecutorial discretion,” and in effect, refuse to initiate removal proceedings against illegal aliens of a certain age, education and criminal background.
As outlined in Crane’s complaint, the 11 agents felt this compelled them to break the oath they undertook to enforce the law. Further, according to their complaint, the directive forced them to run the risk of contravening federal immigration law.
The DHS memo, if followed, would have dramatically narrowed and directly contravened the Immigration and Nationality Act which requires that agents must remove any “alien seeking admission [who] is not clearly and beyond a doubt entitled to be admitted.”
Forcing agents to apply “prosecutorial discretion” based on a new mandate and in defiance of clear federal law created for the agents an Alice in Wonderland-like scenario. But what else is new from an administration which refuses to apply federal DOMA provisions or won’t enforce the Voting Rights Act for white Americans.
To be sure, prosecutorial discretion does exist in immigration law. In the early seventies, it was basically created wholesale by way of a then-INS directive to scupper President’s Nixon’s deportation order against John Lennon.
That Obama and Napolitano could expand what is really an internal directive intended for a few exceptional circumstances, and apply it to millions is indeed brash even for them.
This Tuesday, Judge O’Connor apparently agreed. The judge recognized that such discretion applies only “at later stages of the removal process”, for example by cancelling a notice to appear after removal proceedings are initiated. Further, as the complaint argued, any understanding to the contrary would put an amount of discretion in the hands of the president that would make his Constitutional obligation to “Take Care that the laws be Faithfully Executed” essentially an empty one.
Tuesday’s decision resembled the recent DC Circuit decision to strike down Obama’s unprecedented approach to Senate recess-appointments. Like that decision, the implications here are vast given the effects of the president’s outside-the-law acts have already been in place for some time.
A move vacating all DACA applications approved by Napolitano may be necessary here. The constitutional separation of powers and rule of law are constraining forces on executive power and not mere obstacles to stepped over by this current administration.