Second Brief Filed Opposing Obama Administration's DAPA Amnesty
April 8, 2016
United States v. Texas
(Read brief here)
On April 4, 2016, our firm filed an amicus brief in the U.S. Supreme Court in support of Texas and 25 other States, challenging the legality and
constitutionality of a Presidential directive "deferring action" to remove approximately 4 million aliens who are illegally in the United States.
The United States maintains that the Immigration and Nationality Act, coupled with the legislative power vested by the Constitution in Congress, confers
upon the President and the Secretary of Homeland Security "absolute discretion" to enforce (or not enforce) and administer (or not administer) the removal
of illegal aliens.
Under one of the "Memoranda" issued by the Secretary of Homeland Security, this so-called "discretion" includes authority to provide illegal aliens with a
change in status to "lawful presence" - entitling them to work authorization and benefits that would otherwise be unavailable.
Our brief supported the States' contention that the determinations of "lawful presence" of aliens, and the granting of federal benefits, are governed by
specific statutes that leave no room for discretionary action by the executive branch. Therefore, it is outside the authority of the President unilaterally
to declare illegal aliens who are not protected by specific laws to be "lawfully present" on American soil. Additionally, we argued that the President and
his Secretary's new policy disregards the separation-of-powers principle by usurping both legislative and judicial powers.
Then, we reinforced the challenge made by the majority of the States that they have more than a mere political interest in the executive branch's enforcement
and administration of the nation's immigration laws. Particularly, we encouraged the Court to recognize the legal "sovereign interests" of each State to
maintain the integrity of its borders and to protect its public safety, welfare, and economy - all of which are adversely affected by the President's rogue
directive.
Finally, we emphasized the obligatory duty for the federal courts to protect the independence of the States in our federal system. Reaching back to Chief
Justice Marshall's opinion in Cohen v. Virginia, we reminded the Court that when the states have Article III "controversies" with the United States, that
does not mean the same thing as when private parties bring "cases" arising under the laws or the Constitution of the United States. While courts might have
some discretion to decide whether a plaintiff has standing based on the character of a "case," those rules do not apply with respect to "controversies"
involving governmental parties. As Chief Justice Marshall explained: "it is entirely unimportant what may be the subject of the controversy. [The States]
have a constitutional right to come into the Courts of the Union."
Our brief was filed on behalf of Citizens United, Citizens United Foundation, English First, English First Foundation, U.S. Justice Foundation, The Senior
Citizens League, Conservative Legal Defense and Education Fund, Policy Analysis Center, U.S. Border Control Foundation, Constitution Party National
Committee, and Institute on the Constitution.
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