Executive power on trial

June 10, 2016
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Undocumented immigrants are often not sure how public their lives can be. Photo by Theo Stroomer.

The immigration case that the Supreme Court will rule on this month is technically not about immigration. It is about the limits of executive power and the relations between Congress and the executive branch. If the administration prevails, however, it can expand a program that has already given hundreds of thousands of young immigrants—who have lived most of their lives in this country—the right to work, obtain a driver’s license, go to school with in-state tuition, and other freedoms that add up to an almost normal existence (see Amy Frykholm, “Deferred dreams”). If the administration loses, or if the Supreme Court splits 4-4, the future of these young people (and that of some of their parents) will be more fragile.

United States v. Texas will decide the fate of President Obama’s Deferred Action for Parents of Americans and the expanded Deferred Action for Child Arrivals (known as DACA+). President Obama issued the original version of DACA in 2past012 to allow certain undocumented immigrants who entered the country before age 16 to receive a renewable two-year work permit and temporary exemption from deportation. Critics complained then that he was reforming immigration policy by fiat. When Obama expanded the categories of DACA in 2014 to cover even more young immigrants and extend their work permits to three years, and issued DAPA to allow the undocumented parents of DACA recipients and children born in the United States to have temporary legal standing of their own, 26 states charged the administration with overstepping its authority.

Obama’s executive actions would not have been taken if Congress had passed comprehensive immigration reform, so in that sense Obama is doing what should be done by Congress. But given the presence of 11 million undocumented immigrants, the administration has to have some scheme for prioritizing who is slated for deportation and how to use government resources. Even without an executive action, an administration could defer the deportation of young people who had been in the United States since childhood—that much lawyers for the objecting states have admitted. What plaintiffs are objecting to is not the right of the president to defer deportation, but that he has systematized the process so as to provide clear relief to some people.

Ultimately, even if DACA and DAPA are upheld, substantive reform has to come from Congress. DACA and DAPA provide only temporary relief, not a path to citizenship. In the absence of such reform, they are legitimate efforts to make family unity and young people’s futures a priority in immigration policy.


Wrong Math!

30 Million Illegal Immigrants in US, Says Mexico’s Former Ambassador on MSNBC


"The former ambassador stated,” If you were to deport the 30 million undocumented immigrants in the United States that’s going to cost you about 130 billion dollars.”

Fiesta for New ‘Wave’ of Mexican Immigrants on Univision


"Despite official statistics showing immigration from Mexico is down in recent years, Univision has found an apparent exception in the case of immigrants from the Mexican state of Puebla.

ORLANDO SEGURA, UNIVISION: During the last 30 years three migrant waves of Pueblans to New York have existed. The first was in the 80’s, benefitting from the amnesty of Ronald Reagan. The second, during the economic boom of the presidency of Bill Clinton. The third, we are living through right now."

According to a recent DHS report the number of unaccompanied alien children (UACs) coming across the border has doubled and the number of family units has tripled in fiscal year 2016 compared to the same time frame in fiscal year 2015.

Border Patrol sees increase in number of migrants being detained at Mexico border
"The number of family members caught crossing illegally has nearly tripled compared with this time last year, and the number of unaccompanied children has almost doubled, the figures show."

"The number of unaccompanied alien children (0-17 years old) that were apprehend between October 1- January 31 has doubled from 10,105 in 2015 to 20,455 in 2016. The number of family units apprehended in the same time period has almost tripled from 9,090 in 2015 to 24,616 in 2016."

Thousands of unaccompanied children crossed US-Mexico border in October

US Border Arrests Of Immigrant Children And Families Increased 52 Percent in August

"According to statistics released by the U.S. Border Patrol nearly 10,000 unaccompanied minors and families were arrested in the month of August, a 52 percent jump from last year."

Immigration Reform 2015: Immigrant Families Surging Again At US Border, Homeland Security Says

"Federal border officials might have spoken too soon when they predicted earlier this year that the level of illegal immigration to the U.S. among mothers and children would decrease. There was actually a surge of immigrant families crossing U.S. borders last month [July 2015], a top Department of Homeland Security official told a federal court Thursday."

Surge of illegal children, families accelerates 10,000 caught at border in September

"The surge of children and families crossing the southwest border illegally accelerated again in September, leaving fiscal year 2015 the second-worst on record, according to numbers released Wednesday by the Border Patrol."

Ongoing Migration from Central America: An Examination of FY2015 Apprehensions

Agents say just 40 percent of U.S.-Mexico border under control
20 percent of illegals caught at border have criminal records

"Less than half of the U.S.-Mexico border is under “operational control,” and one out of every five illegal immigrants caught there has a criminal record, the chief of Border Patrol agents’ labor union told Congress Wednesday when detailing violence that increasingly spills over the international boundary."

Here's where Obama admits to

Here's where Obama admits to his DACA/DAPA Executive Action as "I just took an action to change the law." C-Span Video at 2:30



For Obama, Executive Order on Immigration Would Be a Turnabout
"President Obama is poised to ignore stark warnings that executive action on immigration would amount to “violating our laws” and would be “very difficult to defend legally.”

Those warnings came not from Republican lawmakers but from Mr. Obama himself."

Obama’s Immigration Amnesia

"..., Obama said he lacked the legal authority to suspend deportation of family members. Now, he says he has just such legal authority."


Obama’s Actions ‘Same’ as Past Presidents?

"The actions taken by Presidents Ronald Reagan and George H.W. Bush — examples often cited by White House officials — were attempts to address ambiguities in an immigration law that was passed by Congress. Obama’s executive actions are different. They are a response to congressional failure to pass a law, and they affect a far greater number of immigrants currently living in the country illegally."

President Obama’s unilateral action on immigration has no precedent

"In fact, it is increasingly clear that the sweeping magnitude of Mr. Obama’s order is unprecedented."

Reagan and Bush Offer No Precedent for Obama's Amnesty Order Not only were past executive actions smaller, they didn't work.

"This has become a favorite Democratic and center-left rebuttal to Republicans angry at reports that President Obama may soon grant residency and working papers to as many as 5 million illegal aliens. If Obama acts, he’d rely on precedents set by Republican predecessors. Surely that should disbar today’s Republicans from complaining?

Surely not, and for four reasons."

Obama Lies About Past Presidents’ Executive Action On Immigration
Reagan, Bush did not write their own laws, despite incumbent president's claims

“Reagan and Bush acted in conjunction with Congress and in furtherance of a congressional purpose.” Frum writes. “In 1986, Congress passed a full-blown amnesty, the Simpson-Mazzoli Act, conferring residency rights on some 3 million people.”

"In other words, Ronald Reagan signed a statute that had already been debated and passed by Congress, where as Obama is set to write and enact a law by himself."

Here's where Obama and his

Here's where Obama and his administration are now devising four ways to circumvent DAPA injunction:

Leaked DHS memo shows Obama might circumvent DAPA injunction

"The internal memo reveals four options of varying expansiveness, with option 1 providing EADs to “all individuals living in the United States”, including illegal aliens, visa-overstayers, and H-1B guest-workers, while option 4 provides EADs only to those on certain unexpired non-immigrant visas. Giving EADs to any of the covered individuals, however, is in direct violation of Congress’s Immigration & Nationality Act and works to dramatically subvert our carefully wrought visa system. "

Here's the link to this leaked memo:

Employment Authorization Documents (EAD) For Certain Beneficiaries Of Approved I-140 Petitions

Here's where Obama and his administration has already defied the injunction by giving previous DACA recipients benefits under his EO (Memo):




Here's where the Department of Justice (DOJ) filed another “Advisory” with U.S.
District Judge Andrew Hanen, confessing that the Department of Homeland
Security (DHS) had given three year DACA permits to 2,000 applicants
even after Judge Hanen issued an injunction on February 16 blocking all such approvals.