Warner, Kaine join Supreme Court immigration amicus brief

congressToday, U.S. Senators Mark Warner and Tim Kaine joined an amicus brief to the Supreme Court in support of the President’s November 2014 executive actions on immigration. The Court is slated to review the Fifth Circuit Court of Appeals decision in United States v. Texas the legal case that currently blocks implementation of the Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) programs.

“President Obama made a lawful decision to use the authority granted by Congress to set immigration enforcement priorities and focus our limited resources on threats to national security and public safety, not hard-working families,” said Warner and Kaine today. “The President took executive action only after extensive analysis by the Department of Justice legal experts. Moreover, the President’s action was not only lawful, but morally, we believe it is the right thing to do. DAPA and the expansion of DACA will ensure that families will not be torn apart because of Congress’ refusal to address our broken immigration system.”

In 2013, the Senate voted 68-32 to approve bipartisan, comprehensive immigration reform legislation to allow undocumented immigrants to come out of the shadows, support their families, pay taxes and contribute to the economy. However, the Republican-controlled House of Representatives failed to act on the bill.

On November 20, 2014, the Obama Administration announced plans to expand the Deferred Action for Childhood Arrivals (DACA) program and to create a new Deferred Action for Parental Accountability (DAPA) program to offer temporary protection from removal to the parents of American citizens and lawful permanent residents.  On February 16, 2015, a federal district court in Texas blocked the implementation of those programs, and on November 9th, a divided panel of the Fifth Circuit Court of Appeals upheld this ruling.  Supreme Court oral arguments in that case, United States v. Texas, are scheduled for April 18th.

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. Senators Warner and Kaine, along with members from both chambers who signed the amicus brief, make it clear 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 laws.

“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).

“Apart from its humaneness in keeping families intact, the DAPA Guidance facilitates the implementation of the Secretary’s priorities and thus 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, 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 Executive’s longstanding legal authority to establish national immigration enforcement priorities, the members urge the Court to reverse the decision in the Fifth Circuit and vacate the preliminary injunction blocking the programs from being implemented.

“…the DAPA Guidance reflects the 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; rather, it is a fulfillment of it,” concluded the members.

This is the second amicus brief Warner and Kaine have filed supporting the constitutionality of immigration executive actions.

A copy of the final amicus brief is available here.