On Tuesday, the Obama Administration submitted its brief to the Supreme Court in the case to determine whether the president’s executive action on immigration can go forward. The brief addresses the Constitutionality of the president’s action, saying that it grows out of the executive power to use prosecutorial discretion in allocating scarce immigration enforcement resources.
According to the brief for United States v. Texas prepared by the Justice Department, Congress does not appropriate sufficient funding to arrest and deport all persons present in the United States in violation of the law. The Obama administration decided to use its limited resources to focus on deporting persons with criminal convictions, national security threats, and those who recently came to the U.S. without authorization. A large group of several million parents of U.S. citizens and permanent residents were to be granted DAPA and allowed to work and live in the United States.
According to the brief, when the Secretary of the Department of Homeland Security (DHS) authorized DAPA and the related DACA, he was creating a program that “is a lawful, responsible exercise of the Secretary’s broad statutory authority to “[establish] national immigration enforcement policies and priorities,” and to carry out the “administration and enforcement of the INA [Immigration and Nationality Act] and all other laws relating to the immigration and naturalization of aliens,” including by authorizing immigrants to be lawfully employed.
DAPA/DACA, the brief says, is “carefully designed to employ enforcement discretion, in the form of deferred action and concomitant work authorization, to address a difficult National problem involving severe resource constraints and significant humanitarian and policy concerns.”
The brief goes on to say that: “although DHS fully uses available appropriations to remove hundreds of thousands of aliens annually, the fact remains that millions of undocumented aliens will continue living and working here. Rather than ignoring that reality, the Guidance addresses it forthrightly by using deferred action for two categories of aliens with particularly strong ties to this country and who are particularly unlikely to leave voluntarily: Parents of U.S. citizens or lawful permanent residents, and people who came here as children, many of whom have never known another home.”
The Justice Department says that in addition to recognizing the reality that only a small percentage of undocumented immigrants can be deported, there are also humanitarian reasons for implementing DAPA and DACA. This executive action provides “some measure of dignity and decent treatment, and addresses some of the pressing policy consequences that their presence generates. It recognizes the damage that would be wreaked by tearing apart families, and it allows individuals to leave the shadow economy and work on the books to provide for their families, thereby reducing exploitation and distortion in our labor markets.”
As the brief makes clear, different forms of deferred action have been granted at least twenty times since 1960, ranging back to the Eisenhower administration. Over the last half-century, millions of people have benefitted from these exercises of prosecutorial discretion.
Next week, I will look at some of the other arguments made in the government’s brief in this vitally important case. Arguments that say the case should never have been in court in the first place.
The brief is available online HERE.