New in National Review: “Halting Obama’s Immigration End-Run Around Congress”

May 28th, 2015

National Review has published my essay about the 5th Circuit’s decision in Texas v. United States. The thrust of the piece is that Judge Smith’s majority opinion grappled and engaged with the entire gestalt of DAPA, while the dissent was shuttered by blinders, limiting the analysis to the “four corners” of the memorandum. We cannot lose sight of what DAPA is, and where it came from. Doing so conflates the massive expansion of executive power with a routine application of prosecutorial discretion.

Here is a snippet:

On Tuesday, a federal appeals court kept in place an injunction preventing President Obama from implementing his executive action on immigration, known as DAPA. The majority opinion, by Judge Jerry E. Smith, recognized the administration’s policy for what it is: the suspension of deportation for 4 million aliens, designed to trigger federal benefits including work authorization. In stark contrast, Judge Stephen A. Higginson, in his dissent, refused to appreciate the circumstances surrounding the policy, limiting his consideration to the “four corners” of the published DAPA memorandum. As I’ve discussed before on NRO, and in legal briefs, the courts must confront and engage with the fact that DAPA is a brazen effort by President Obama to bypass Congress.

Defenders of DAPA insist that offering work authorization is part of what is known as deferred action, and they contend that Congress actually has given the Department of Homeland Security the power to offer these benefits. The Fifth Circuit wisely sees through this argument. If Congress had given the president the hitherto unknown and unbounded power to “[make] 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits,” then the court “would expect to find an explicit delegation of authority.” However, “no such provision exists.” As a 2000 decision of the U.S. Supreme Court put it, Congress does not “hide elephants in mouseholes.” And as the Supreme Court recognized last year, “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism.” If Congress had intended to give DHS this unprecedented dispensing power, it would have done so directly. To the contrary, both houses of Congress have voted to register their opposition to this executive action. DAPA is contrary to, not consonant with, congressional actions. As a result, to borrow words written by Justice Robert H. Jackson, the executive action “must be scrutinized with caution.”

Judge Higginson, noting that “the political nature of this dispute is clear,” concludes that he “would not affirm intervention and judicial fiat ordering what Congress has never mandated.” This gets it exactly backwards. By disregarding the history and circumstances that led to the establishment of the policy, Judge Higginson is content to reside in DAPA fantasyland. Applying even the most lax scrutiny to DAPA leads to the conclusion reached in the workmanlike and methodical majority opinion: DAPA amounts to a massive change in policy, which Congress has never sanctioned, and the administration should make its case to the American people before granting a quasi-legal status to 4 million aliens.