On May 11, 2015, our firm filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit, supporting the challenge by the State of Texas and 25 other states to the Obama Administration's misuse of "executive action" ("DAPA") to implement provisions of the DREAM Act that Congress refused to enact.

In November 2014, the Obama's Department of Homeland Security enacted various policies designed to grant "lawful presence" to about 4 million illegal aliens meeting certain criteria, who otherwise would be subject to deportation. The Administration claimed it was simply using "prosecutorial discretion," choosing not to enforce the law against certain persons. The challenge by 26 states claimed that President Obama opposed, and actually was refusing to enforce the nation's immigration laws.

Our brief first argued that the states have standing to sue under a theory of "abdication standing." Under this theory, if the federal government claims sole authority to act in a given area (such as immigration law), to the exclusion of the states, but then fails or refuses to act in that area, the states may challenge that abdication of authority in court.

Next, we argued that DAPA's grant of immunity from prosecution to millions of illegal aliens constituted an exercise of a type of monarchical prerogative power to dispense or "waive" the law with respect to certain persons. The U.S. Constitution recognizes no such authority of the President to choose to exempt certain favored persons from the nation's immigration laws.

As to the constitutional issues, our brief argued that, in implementing DAPA, the President acted contrary to both the express and implied will of Congress. First, Congress has explicitly legislated that illegal aliens are unlawfully present, and that they should be removed. Second, Congress has refused several times to enact the DREAM Act, the same provisions which the President seeks to implement here. Third, while Congress has at times explicitly granted deferred action to various small groups of aliens, that is entirely different than the general amnesty to millions the President seeks to give here. When opposing Congress' will, the Supreme Court has said that the President's powers are "at their lowest ebb."

Our brief also argued that, by refusing to enforce the law, the President is exercising what could be considered a post-enactment veto power. However, the Constitution grants him only the right to veto a law before it is enacted. Once a bill becomes law, however, the Take Care Clause of the Constitution requires the President to enforce it unless it is unconstitutional. While the President claims to be exercising "prosecutorial discretion," in this case "prosecutorial discretion" has become a wholesale abdication of his constitutional duty to enforce the law.

Finally, our brief discussed the enormous financial strain that millions of legalized illegal aliens will place on the Social Security and Medicare systems, who will pay little in taxes but receive much in benefits.

Our brief was filed on behalf of Citizens United, Citizens United Foundation, English First Foundation, English First, TREA Senior Citizens League, U.S. Justice Foundation, The Lincoln Institute for Research and Education, Abraham Lincoln Foundation for Public Policy Research, Inc., U.S. Border Control Foundation, Policy Analysis Center, Institute on the Constitution, and Conservative Legal Defense and Education Fund.