WASHINGTON—This week the Supreme Court announced that it will hear arguments in the legal challenge to President Barack Obama’s executive amnesty for illegal aliens, marking only the second time in American history that the Court will hear a challenge brought by a majority of the states in the Union against the federal government.
As Breitbart News previously reported, after years of telling the public (in over 20 televised speeches) that no president has the authority to change immigration law to grant amnesty allowing illegal aliens to stay in this country, in November 2014, Obama decided he had such power, and announced that he was unilaterally changing the law without Congress.
This program—which goes by the acronym DAPA—went into immediate effect as a federal regulation. This change to federal law has two parts.
First, out of well over 11 million illegal aliens currently in the United States, the president would define a class, to include approximately 4.3 million aliens, regarding whom he ordered the Department of Justice and the Department of Homeland Security (DHS) to stop deportation proceedings, or—for those against whom the government had not taken any action—never to start the process.
Second, he ordered the federal government to issue those aliens foreign work permits and other documents whereby they could get jobs in America, as well as other benefits such as obtain driver’s licenses and board an airplane. These documents would also allow illegal aliens to obtain various public welfare benefits like Obamacare, and also to file amended tax returns covering the past three years to obtain checks from the government as a form of federal welfare.
More than half of the states in the country—twenty-six, to be precise—brought a lawsuit in federal court, filing in the U.S. District Court for the Southern District of Texas. The Lone Star State took the lead, represented by Texas Solicitor General Scott Keller, a former law clerk to Justice Anthony Kennedy and former general counsel to Senator Ted Cruz.
The challenge raises three issues.
First, Obama tasked DHS with labeling DAPA as an “interpretive rule,” meaning that it does not need to go through the notice-and-comment process generally required under the Administrative Procedure Act (APA) for new regulations, because it’s only a “minor” rule with limited impact that merely interprets preexisting law. The states argued that this is a “substantive rule,” meaning a major regulation, one that requires extensive public comment and agency responses before it can go into effect.
Second, the states argue that even if Obama had gone through the formal process required for substantive rules, it would still be illegal under the APA because DAPA violates the Immigration and Nationality Act (INA), which is the law passed by Congress that determines who can enter this country, who can stay in this country, and the criteria and process for a foreigner to become an American citizen. The states argue that under Article I of the Constitution, only Congress can make those decisions, not the president.
Third, the states argued that even if DAPA did not violate the APA or the INA, it would still be unlawful because it violates the president’s duty under the Take Care Clause of the U.S. Constitution, which requires every president to “take care that the Laws be faithfully executed.” In other words, the states argue that Obama’s executive amnesty is unconstitutional.
The district court stopped DAPA from going into effect, and ruled in favor of the states, but only on the grounds that DAPA is a major rule that had to go through the entire APA process before taking effect. The trial court did not rule on the other two issues.
The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s decision, but added that not only does DAPA violate the APA’s procedural requirements, it is also illegal because it violates the INA. Consistent with standard practice, the New Orleans-based appeals court did not rule on the constitutional question, since the case had been decided on lesser (that is, statutory) grounds.
On Jan. 19, 2016, the Supreme Court granted a petition for certiorari brought by U.S. Solicitor General Donald Verrilli, asking the justices to review the case. But in addition to the two issues decided by the Fifth Circuit, the Court took the unusual step of also ordering the parties to argue whether DAPA is an unconstitutional violation of the Take Care Clause.
Arguments for the case will be scheduled in late April, and a decision should be handed down by the end of June. This case is of historic importance not only for its impact on immigration, but also its implications for the scope of presidential power under the Constitution.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.