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NOTE: In December 2014, Texas and 25 other states filed a lawsuit in the Southern District Court of Texas seeking to block both DAPA and expanded DACA. The main grounds for their suit were the costs of issuing driver’s licenses and other associated costs of giving the undocumented immigrants legal status. Other issues being considered included exceeding executive power, failure to adhere to rulemaking procedures, and standing — the right of the states to challenge federal immigration policies. On February 16, 2015, Judge Andrew Hanen issued a temporary injunction blocking both programs from going into effect. (National Law Review)
(by Alicia A. Caldwell, Associated Press) WASHINGTON – The Obama administration said Tuesday it will ask the Supreme Court to save its plans to shield from deportation millions of immigrants living in the country illegally. The appeal advances a legal confrontation with 26 states during a presidential race already roiled by disputes over U.S. immigration policy.
The 5th U.S. Circuit Court of Appeals late Monday effectively blocked President Barack Obama’s plan [executive action] to protect from deportation as many as 5 million [illegal] immigrants, primarily the immigrant parents of U.S. citizens and legal permanent residents. It upheld a Texas-based federal judge’s earlier injunction.
The ruling leaves in limbo the future of the program, called the Deferred Action for Parents and Americans [DAPA]. Democratic presidential front-runner Hillary Clinton promised in May if elected to expand President Obama’s executive actions if Congress does not overhaul U.S. immigration laws. In October she also pledged to be “less harsh and aggressive” than Obama in enforcing immigration laws. …
The future of the estimated 11 million immigrants living in the country illegally has been debated by Republican and Democratic presidential candidates. Earlier this month Sen. Marco Rubio, R-Fla., said if elected he would eventually end Obama’s Deferred Action for Childhood Arrivals [DACA], which protects from deportation immigrants brought to the country illegally as children.
DACA was seen as an administrative answer to the DREAM Act, legislation…that would provide legal status to those young undocumented immigrants. To date, more than 720,000 young [illegal] immigrants have been granted permission to live and work legally in the U.S. under DACA. That program is not affected by the appeals court ruling.
White House press secretary Josh Earnest said Tuesday the case was ultimately about the administration’s authority to decide how to use its limited resources in immigration enforcement.
“We obviously continue to believe strongly in the legal power of the arguments that we have been making for nearly a year … about the importance of giving our law enforcement officials the discretion to implement our immigration laws in a way that focuses on those who pose a genuine threat to our national security or to our communities,” Earnest said.
Monday’s 70-page ruling rejected administration arguments that the district court had abused its discretion with a nationwide order and that the states lacked standing to challenge Obama’s executive orders.
The Court acknowledged that an adverse ruling would discourage potential beneficiaries of DAPA from cooperating with law enforcement authorities or paying taxes. “But those are burdens that Congress knowingly created, and it is not our place to second-guess those decisions,” U.S. Circuit Judge Jerry Smith wrote for the majority. Smith was appointed to the court by Republican President Ronald Reagan.
In a 53-page dissent, Circuit Judge Carolyn Dineen King, who was appointed by Democratic President Jimmy Carter, said the administration was within the law. She cast the decision to defer action on some deportations as “quintessential exercises of prosecutorial discretion” and noted that the Homeland Security Department has limited resources.
“Although there are approximately 11.3 million removable aliens in this country today, for the last several years Congress has provided the Department of Homeland Security with only enough resources to remove approximately 400,000 of those aliens per year,” King wrote.
It’s unclear when the Justice Department will file its appeal or whether the high court would take up the case, but the administration may be running out of time to get a final decision before Obama leaves office in early 2017.
While the appeal moves forward, not much will change for the millions of [illegal] immigrants Obama sought to help by going around Congress.
When Obama and Homeland Security Secretary Jeh Johnson announced the Deferred Action for Parents of Americans (DAPA) program last year, they also rolled out a new set of priorities for immigration enforcement that focused on criminals, those who pose a threat to national security or public safety and recent border-crossers.
The result of that renewed focus means the average immigrant whose only offense is living in the country illegally isn’t likely to face deportation.
During the last budget year, which ended in September, the administration removed about 231,000 immigrants living in the country illegally, according to internal government documents obtained by The Associated Press.
It was the fewest number of deportations since 2006 and a 42 percent drop since a record high of more than 409,000 in 2012.
Associated Press reporter Kevin McGill in New Orleans contributed to this report. Reprinted here for educational purposes only. May not be reproduced on other websites without permission from YahooNews or Associated Press.
Questions
NOTE TO STUDENTS: This is a controversial issue for many Americans. Be polite to those with whom you disagree when discussing these types of issues and always give the other person a chance to explain his/her point of view. Also, learn how to recognize when it is no longer productive to discuss an issue on which you strongly disagree.
1. a) Define executive action.
b) What executive action did President Obama take on immigration?
2. Why did Texas and 25 other states challenge the President’s executive action?
3. What does White House spokesman Josh Earnest say the case is about?
4. What argument did the Obama administration use to challenge the district court’s ruling in the higher 5th Circuit Court of Appeals?
5. Why won’t those who would be protected from deportation under DAPA not be affected by the Obama administration’s loss in the Court of Appeals?
6. The dissenting judge in the 5th Circuit Court wrote, ”Although there are approximately 11.3 million removable aliens in this country today, for the last several years Congress has provided the Department of Homeland Security with only enough resources to remove approximately 400,000 of those aliens per year.”
How many illegal immigrants did the Obama administration remove in the last year?
7. Name the three branches of government; what is the role of each under the Constitution?
8. Democratic presidential front-runner Hillary Clinton promised in May that if elected, she would expand President Obama’s executive actions if Congress does not overhaul U.S. immigration laws. Many of the Republican presidential candidates have said they would end President Obama’s executive action on immigration and instead enforce existing immigration laws. Front-runner Donald Trump says he’ll build a fence (and make Mexico pay for it).
Ask a parent: With which party’s position on illegal immigration do you agree? Why? NOTE: Many people prefer to keep their opinions on controversial issues private. This answer is not for class discussion.
CHALLENGE: On Executive Orders (from wikipedia):
There is no constitutional provision nor statute that explicitly permits executive orders. The term executive power Article II, Section 1, Clause 1 of the Constitution, refers to the title of President as the executive. He is instructed therein by the declaration “take Care that the Laws be faithfully executed” made in Article II, Section 3, Clause 5 or face impeachment.
Most executive orders use these Constitutional reasonings as the authorization allowing for their issuance to be justified as part of the President’s sworn duties, the intent being to help direct officers of the U.S. Executive carry out their delegated duties as well as the normal operations of the federal government: the consequence of failing to comply possibly being the removal from office.
An executive order of the president must find support in the Constitution, either in a clause granting the president specific power, or by a delegation of power by Congress to the president.
Considering this, do you think President Obama has the Constitutional authority to bypass Congress to issue executive actions on immigration? Explain your answer.
Background
From a Nov. 9 Washington Post report:
- There are an estimated 11 million immigrants living in the country illegally.
- After House Republicans blocked a Democrat sponsored immigration bill last year, Obama announced plans to use executive action to dramatically expand a 2012 program (DACA) that deferred the deportations of hundreds of thousands of immigrants who entered the U.S. illegally as children.
- Under the new program (DAPA), the undocumented parents of U.S. citizens would be eligible to remain and apply for three-year work permits, provided they had not committed other crimes and lived in the country at least five years.
- But 26 states, most with Republican governors and led by Texas, sued to block the program, arguing they would incur fees associated with the issuance of driver’s licenses to the immigrants and asserting the Obama administration had failed to abide by federal rulemaking requirements.
- In February, a U.S. District Court judge in Brownsville, Tex., ruled that the program could not get underway as he continued to review whether the program was constitutional, stopping it just days before the Department of Homeland Security was to begin accepting applications.
ON EXECUTIVE ACTION:
Most news reports refer to President Obama’s “plan” to shield 4-5 million immigrants who are living in the U.S. unlawfully. The president actually took executive action to enable them to stay. Texas and the 25 other states are challenging the president’s authority to issue an executive action on this matter.
Note: There is a difference between executive orders and executive actions. The difference is:
- A presidential executive order is a directive issued to federal agencies, department heads, or other federal employees by the President under his statutory or constitutional powers. Executive orders are legally binding and published in the Federal Register, though they also can be reversed by the courts and Congress.
- Executive actions are any informal proposals or moves by the president. The term executive action itself is vague and can be used to describe almost anything the president calls on Congress or his administration to do. But most executive actions carry no legal weight. Those that do actually set policy can be invalidated by the courts or undone by legislation passed by Congress. (from about .com)
“America does not stand still, and neither will I,” Obama said. “So wherever and whenever I can take steps without legislation [by using executive action] to expand opportunity for more American families, that’s what I’m going to do,” he said.
…The Supreme Court can overrule an executive action in the same way it would find a law unconstitutional. (blog.constitutioncenter.org)
Obama’s Executive Action on Immigration
- After Congress refused to pass the DREAM Act at least two dozen times between 2006 and 2011, Obama decided to bypass Congress altogether and “change” the law by executive fiat.
- In 2012, the administration created the Deferred Action of Childhood Arrivals (DACA), enabling 1.7 million illegal aliens under 30 years old brought to the U.S. as children to apply for work authorization and deferred deportation. Then, in 2014, DACA was expanded by, among other things, eliminating the age cap and increasing the term of deferred action and employment authorization from two to three years.
- The administration also created DAPA, conferring deferred action on illegal aliens whose children are U.S. citizens or lawful permanent residents, provided no other factors make deferred action inappropriate. In addition to lawful presence, DAPA grants deferred-action recipients benefits such as work authorizations, driver’s licenses, Social Security, and other government benefits, costing an estimated $324 million over the next three years, according to the district court.
- Texas and 25 other states challenged DAPA, alleging that it violates the Constitution’s Take Care Clause and the Administrative Procedure Act (APA). A federal district court held that DAPA violated the APA’s notice-and-comment requirements and preliminarily stopped the Department of Homeland Security from implementing “any and all aspects or phases” of DAPA. Earlier this year, the Fifth Circuit denied the United States’ request for an emergency stay.
- On Monday, the appeals court upheld the district court’s preliminary injunction, finding that Texas has standing to sue, and the states established a substantial likelihood of success on their claims that DAPA violated the APA. The court did not rule on the constitutional issue.
- The court found that Texas has standing to sue—meaning it has an injury that is “fairly traceable” to DAPA—because DAPA would enable at least 500,000 illegal aliens to receive subsidized Texas driver’s licenses, at a cost of $130.89 per license, which would end up costing the state millions of dollars. While the administration asserted that DAPA beneficiaries would then generate income for Texas by registering their cars and buying car insurance, the panel refused to accept this because “[w]eighing those costs and benefits is precisely the type of ‘accounting exercise,’ in which we cannot engage.” (from the DailySignal)
Resources
Watch a CBS News report:
President Obama has said he opposed the use of executive action on illegal immigration: washingtonpost.com/blogs
President Obama at a Univision Town Hall, March 28, 2011:
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