WASHINGTON, DC – Today, Sens. Bob Menendez (D-NJ) was joined by 224 members of congress, including Democratic leaders Harry Reid and Nancy Pelosi, in announcing they will file an amicus brief to the Supreme Court in support of the Obama administration’s executive actions in the United States v. Texas case — the legal case that currently blocks implementation of the President’s Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) programs.
With oral arguments scheduled for April 18th, and as Speaker Paul Ryan reportedly plans to force an unprecedented vote on a Resolution authorizing the filing of a legal brief against the President’s immigration executive actions on behalf of the entire House, the Democratic Members from both chambers make it clear in their brief that DAPA and expanded DACA are based on laws enacted by Congress that grant the Department of Homeland Security (DHS) broad discretion to determine how to best enforce our country’s immigration law.
“Congress, of course ‘legislates against a background assumption of prosecutorial discretion.’ Abuelhawa v. United States, 556 U.S. 816, 823 n.3 (2009),” wrote the members. “As this Court has ‘repeated time and again,’ an agency ‘has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.’ Massachusetts v. EPA, 549 U.S. 497, 527 (2007). But in crafting the Nation’s immigration laws, Congress has not relied on implicit executive authority. Rather, Congress has explicitly made ‘broad grants of discretion’ to the Executive. Jean v. Nelson, 727 F.2d 957, 965 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985). Congress expressly authorized the Secretary (previously the Attorney General) to ‘establish such regulations; … issue such instructions; and perform such other acts as he deems necessary for carrying out his authority’ to execute the INA, including removal. 8 U.S.C. § 1103(a)(3).”
“This Court has observed that deferred action is a “commendable exercise in administrative discretion.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (“ADC”). Deferred action is not just a humanitarian exercise. Like other uses of deferred action, the DAPA Guidance facilitates the implementation of the Secretary’s priorities and promotes the efficient and effective execution of the immigration laws consistent with the limited enforcement resources available. The Guidance does this by encouraging eligible persons to submit to a background check so they can be identified and classified according to removal priority, and by enabling those with an economic need to support themselves lawfully.”
Citing the vast legal precedent that supports issuing rational enforcement practices like DAPA and expanded DACA, and outlining why the President’s actions fall within the Take Care clause of the Constitution, the members urge the Court to reverse the decision in the 5th Circuit Court of Appeals and vacate the preliminary injunction blocking the programs from being implemented.
“The DAPA Guidance reflects a decision by the Secretary, acting within finite congressional appropriations insufficient to remove every removable noncitizen, to channel DHS’s enforcement efforts according to a set of removal priorities and to make practical accommodations for low-priority noncitizens during their temporarily continued presence. That is not a deviation from the obligation to faithfully execute the laws; it is its fulfillment.”
The brief is signed by 39 Democrats in the Senate and 186 in the House. This is the second strong showing from Democrats in filing a legal brief supporting the President’s immigration executive actions.