Barack Obama claims the right to violate immigration laws and the power to decide which laws he wants to enforce. These statements are absurd, on their face, but they are what the Obama administration will argue before the US Supreme Court on April 18 in United States v. Texas.
The federal district court and the Fifth Circuit Court of Appeals have both ruled against the Obama administration, finding Obama’s executive orders on immigration, known as DAPA, illegal and unconstitutional. The Supreme Court will likely follow suit, eliminating the last possibility of saving DAPA. The most important issue likely to be ruled on by the court is the Take Care clause which makes mandatory the president’s duty to take care that the laws be faithfully executed.
Obama Claims The Right To Violate Immigration Laws
For several years, Obama maintained he did not have the authority to unilaterally rewrite US immigration laws. He rightly stated that immigration laws were the purview of Congress. Then in November 2014 Obama reversed his position and declared that he could and would change immigration laws because congress refused to do so.
The executive order that Obama concocted was known as Deferred Action for Parents of Americans and Lawful Permanent Residents or DAPA. DAPA was designed to grant amnesty to more than four million illegal immigrants, by way of temporary legal status that would entitle them to work authorizations and other benefits.
But, DAPA is illegal and unconstitutional, in that it deliberately bypasses Congressional authority and conflicts with fifty years of congressional immigration policy. It also violates the separation of powers and thumbs its nose at the Take Care Clause, thus making it unconstitutional.
Texas and 25 other states joined in suing the Obama administration, demanding that Obama halt his illegal executive actions on immigration. Agreeing with the states, in February 2015, federal district court Judge Andrew Hanen issued an injunction barring DAPA from going into effect, but the administration violated the court order.
The Justice Department then appealed to the Fifth Circuit Court of Appeals and subsequently asked the Supreme Court to hear the case. The Fifth Circuit Court affirmed the temporary injunction ordered by the lower court.
Obama’s last shot at preserving DAPA is the Supreme Court, who has agreed to hear the case. The Court has indicated it will look at whether DAPA violates the Immigration and Naturalization Act and related statutes, as enacted by Congress and whether Obama’s actions violate the Take Care clause of the constitution.
Take Care Clause Requires Laws Be Faithfully Executed
The Take Care Clause makes mandatory the president’s duty to “take care that the laws be faithfully executed” and contains four components:
- the duty is mandatory and not discretionary;
- the president must act with care;
- the president must execute the law, not author new legislation; and
- the president must make a faithful effort to enforce the laws Congress passes.
DAPA amounts to a legislative act and is not a good faith or careful attempt to execute the law. Although our immigration system is broken, Barack Obama does not have the power to change the law himself. The Supreme Court will agree with the two lower court decisions and rule against the Obama administration.
Obama Cannot Unilaterally Change Immigration Laws
Does the president of the United States have the power to unilaterally tell millions of individuals who are violating federal law that he will not enforce that law against them now, that they may continue to violate that law in the future and that he will take action that makes them eligible for federal benefit programs for which they are not currently eligible due to their unlawful status?