I was the primary author, along with Ilya Shapiro, of an amicus brief filed in U.S. v. Texas on behalf of the Cato Institute and Professors Randy Barnett and Jeremy Rabkin. We make two primary arguments: First, that DAPA is inconsistent with the President’s duty to take care that the laws be faithfully executed; Second, that the writ should be dismissed as improvidently granted.
Here is the summary of the argument:
The question this Court has added to those presented in the petition was well-founded. “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA)—the president’s euphemistically named policy of systematically suspending and rewriting federal law, is not an act of prosecutorial discretion. Instead, it is an effort, in the face of direct congressional opposition, to nullify the existing law because the president’s preferred law was not enacted. Regardless of one’s views on existing immigration law, DAPA conflicts with five decades of congressional policy as embodied in the Immigration and Naturalization Act (INA) and is inconsistent with previous uses of deferred action. Nor is it a good-faith effort to allocate prosecutorial resources in a manner best suited to enforcing the law. Instead, DAPA amounts to the president’s refusal to enforce the law—in violation of his duty to take care that the laws be faithfully executed.
The Take Care Clause originated in response to the British monarch’s practice of suspending the law, crossing the line between executive and legislative functions. As the Constitution’s authors well knew, the English Bill of Rights reasserted Parliament’s legislative power in the wake of the Glorious Revolution, eliminating “the pretended power of suspending . . . or the execution of laws by regal authority.” The Bill of Rights, 1 W. & M., c. 2 (1689).
Nevertheless, King George III routinely refused his assent to laws enacted by colonial legislatures, insisting that they contain a clause authorizing the king to suspend their authority. This blurring of legislative and executive power yielded the first two grievances in the Declaration of Independence. Many of the early state constitutions that predated the federal Constitution also mandated that their executives faithfully execute the laws—or prohibited governors from suspending them.
In Philadelphia in 1787, early versions of the Take Care Clause from the Committee of Detail focused on the president’s “duly” executing the laws. Later revisions from the Committee of Style and Arrangement—staffed by James Madison and Alexander Hamilton—shifted the focus by emphasizing the President’s obligation to “faithfully” execute the laws. 3 The Records of the Federal Convention of 1787, at 617, 624 (Max Farrand, ed. 1911); Federalist No. 77 (Hamilton).
A textualist examination of the Take Care Clause reveals that its fulcrum is the president’s faithfulness to his enforcement duty. The Clause specifies that the president “shall take care that the laws be faithfully executed.” This duty entails four distinct but interconnected components.
First, the president “shall” execute the law. The duty is mandatory, not discretionary.
Second, he must act with “care” or “regard” for his duty. Kendall v. U.S. ex rel Stokes, 37 U.S. (12 Pet.) 524, 612-13 (1838).
Third, the president must “execute” Congress’s laws, not engage in a legislative act himself. Little v. Barreme, 6 U.S. (2 Cranch) 170, 177-78 (1804).
Fourth, and most importantly, the clause requires that the president act “faithfully”—literally, in good faith. While no president can perfectly execute the law, and he may have to prioritize his actions given limited resources, he must nevertheless make a faithful effort to execute the laws.
For two primary reasons, DAPA is inconsistent with the president’s duty to take care that the laws be faithfully executed. First, the circumstances that gave rise to DAPA demonstrate that it is not a good-faith exercise of prosecutorial discretion, but instead a blatant effort to nullify a law that the president sought unsuccessfully to repeal.
Second, DAPA is not an execution of the law, but amounts to a legislative act: the granting of lawful presence to a class of millions to whom Congress expressly denied that status. Further, DAPA is not consonant with congressional policy, nor has Congress acquiesced in it. On the contrary, it is a “measure incompatible with the expressed . . . will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Ordinarily, this would mean that the president could “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. But as Congress has virtually the entire power at issue here—and there are no claims of inherent executive power—that leaves the President with nothing.
Faced with a grave risk to the separation of powers, the Court should affirm the judgment of the Fifth Circuit and enjoin DAPA’s enforcement. Alternatively, the Court should dismiss the writ of certiorari as improvidently granted.
I plan on attending oral arguments, and will report more on the case afterwards.