Through a policy known as Deferred Action for Parental Accountability (“DAPA”), President Obama has postponed deportations for over 4 million aliens, entitling them with work authorizations. This unilateral action is good policy, bad law, and terrible precedent. But more importantly it is unlawful. Texas, and 24 other states have filed a lawsuit challenging DAPA. A motion for a preliminary injunction is pending before the Southern District of Texas, Brownsville Division. I joined an amicus brief on behalf of The Cato Institute, along with Professors Jeremy Rabkin and Peter Margulies, supporting the plaintiffs.
In short, our argument is that the President’s actions are not consistent with congressional policy. The President defends his policy by citing past deferrals for (1) battered and abused aliens, (2) aliens involved in human trafficking, (3) foreign students affected by Hurricane Katrina, and (4) widows of U.S. Citizens. However, these deferred actions served as temporary bridges from one status to another, where benefits were construed as immediately arising post-deferred action. Further, all of these deferred actions were several orders of magnitude smaller than DAPA–in the tens of thousands, not in the millions. Most significantly, were all approved of by Congress.
None of these principles holds true for DAPA. This executive action represents a fundamental rewrite of the immigration laws that is inconsistent with the Congressional policy currently embodied in the INA. The Obama Administration stated the test directly in its own justification of the policy, “an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”
As I explain in my new law review article in the Georgetown Law Journal Online, DAPA is contrary to, rather than consonant with the congressional policies underlying the INA. It is in palpable tension with the statute and the intent Congress evidenced in enacting the relevant provisions. In the architecture of separation of powers crafted by the Framers, unilateral executive action based solely on Congress’s resistance to the President’s policy preferences has no place.
While we agree that the immigration laws need to be overhauled, and we sympathize with the humanitarian plight facing undocumented aliens, the pathway designed by the Framers for implementing that policy agenda is clear: it goes through the halls of Congress. Unilateral exercises of power such as DAPA undermine that agenda, as well as the Framers’ scheme.