On appeal to the 5th Circuit, the Obama Administration has pivoted, ever so slightly, in its defense of DAPA. Now, the government claims that DAPA is essential to national security, and that unless Judge Hanen’s order is put on hold, the government will be unable to secure the border and the homeland. In short, this argument is false. Absolutely nothing in Judge Hanen’s order prevents the government from taking these steps. No one must be deported. Rather, they are only prohibited from granting deferred action, which is accompanied by myriad benefits from work authorization to the earned income tax credit. This is the theme of my new piece in National Review. Here is the introduction:
Believe it or not, President Obama says his executive action on immigration isn’t actually about immigration — it’s about enhancing national security. In order to help Homeland Security agents quickly distinguish dangerous immigrants from those who pose no threat, the president had to grant, he claims, quasi-legal status to 5 million immigrants. Once the immigrants sign up, his argument goes, they will undergo background checks and receive a biometric ID, making it a lot easier for DHS agents to identify them. Oh, and by the way, because halting millions of deportations was not reason enough to coax immigrants to “come out of the shadows,” the president will approve virtually every single applicant for work authorization, Social Security benefits, and even the earned income-tax credit, as an “incentive” to sign up. It’s all part of keeping our nation secure. Remarkably, this is exactly how President Obama legally justifies his DAPA (Deferred Action for Parental Accountability) program.
This Rube Goldbergesque contortion of logic, premised on a “complete abdication” of the law, is the best defense the Justice Department can muster for why this policy should go into effect immediately. If you believe that this was the real reason behind DAPA — and not a scheme to implement an immigration policy that Congress expressly rejected — then I have a bridge to sell you. While Congress generally has broad latitude in choosing the means to accomplish legitimate policy goals, the executive, when acting unilaterally to disregard the law, should not receive such deference. This national-security smokescreen should be rejected by the courts.
While Congress can, under the necessary and proper clause, choose the means with which to accomplish certain ends, the President, when acting unilaterally in the absence of Congress, cannot pick and choose how he wants to set immigration policy. A point I didn’t make in the article, is the entire business of using work authorization as an “incentive” is the essence of setting policy, which is the prerogative of Congress. While Congress did authorize employment authorization for those with deferred action, this is NOT how Congress designed it. If memory serves, before DACA, roughly 5,000 people received deferred action annually. Then the number shot up to a million.
In the context of an injunction, the government will not be able to show the district court’s order prevents them from accomplishing the very tasks they set out to accomplish.
Since the seminal case of McCulloch v. Maryland, authored by Chief Justice John Marshall, Congress has had wide latitude when choosing how to accomplish its objectives: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” In other words, courts defer to Congress when it chooses one approach over another to accomplish legitimate policy goals. But we should not lose sight of the fact that DAPA is not an act of Congress, but a unilateral exertion of executive power. Rather than representing the wisdom of Congress — the branch that can set policy — DAPA amounts to a brazen effort to rewrite the law in the president’s own image. The implausible “national security” argument — which is entirely at odds with anything Congress has ever thought of — solidifies the gap between the executive and the legislative branches. If Congress were to pass a statute that provided work benefits to undocumented immigrants to promote national security, some might doubt its efficacy, but the judiciary would have no license to question its wisdom. DAPA presents an entirely different calculus. To determine whether the president is adhering to his constitutional duty to “take care that the laws be faithfully executed,” we must determine whether the president is acting in good faith to comply with the laws, or deliberately deviating from them to achieve a contrary policy. The president’s own flimsy arguments in court, which crumble under the laxest scrutiny, demonstrate what DAPA is really about. The judiciary need not defer to this tendentious position, and should recognize it for what it is — a mere smokescreen to allow the president to write his own laws.