Under a six-page directive issued by Department of Homeland Security (DHS) Secretary Jeh Johnson, DHS will start accepting applications under Obama’s expanded Deferred Action for Childhood Arrivals (DACA) program Wednesday unless U.S. District Court Judge Andrew Hanenissues a ruling blocking the department from proceeding.
During oral arguments on the case in his packed courtroom in January, Judge Hanen, a George W. Bush appointee, said that the Southern District of Texas was the ideal place to decide the executive amnesty issue because “talking to anyone in Brownsville about immigration is like talking to Noah about the flood.”
The PEW Research Center reported that Texas has the second largest percentage of illegal immigrants in the nation (825,000 or 3.2 percent of the state’s population) who would be eligible under DACA.
“On November 20, 2014, the President of the United States announced that he would unilaterally suspend the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States,” the lawsuit stated. “The President candidly admitted that, in doing so, he unilaterally rewrote the law.”
“This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution,” according to the amended complaint filed by then Texas Governor-elect Greg Abbott in federal court in Brownsville, Texas on Dec. 9. 2014 with 23 other states.
The lawsuit was signed by Maine Gov. Paul LePage, the attorneys general of Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Texas, South Carolina, South Dakota, Utah, West Virginia, and Wisconsin, and counsel for Indiana, Mississippi, North Carolina and Idaho. Tennessee and Nevada later asked to join the group of plaintiffs.
“The DHS Directive purports to create legal rights for millions of undocumented immigrants. And it does so by rewriting the immigration laws and contradicting the priorities adopted by Congress,” the lawsuit argued, pointing out that Obama himself admitted that “he took an action to change the law” after repeatedly stating publicly that he had no legal authority to do so.
The plaintiffs pointed out that the president “repeatedly and forcefully urged Congress to pass the DREAM Act,” which would have allowed illegal immigrants to apply for permanent resident status if they entered the U.S. before their 16th birthdays and remained in the U.S. continuously for five years. But “neither congressional chamber passed the DREAM Act,” they noted.
“Notwithstanding his repeated insistence that he could not stretch his executive powers any further, the President announced his unilateral creation of the DACA program on June 15, 2012,” the lawsuit stated.
“If this president can do this, then the next president can do the same thing with any law,” argued Andrew Oldham, deputy solicitor general of Texas. “There really is no limit.”
U.S. Deputy Attorney General Kathleen Hartnett countered that DHS was just trying to free up resources that it needed to protect national security instead of going after low-risk immigrants who posed no threat to Americans.
DHS “is removing as many people as it can with the resources that it has,” Hartnett told Judge Hanen. “This is not a policy about encouraging or incentivizing massive flows of people.”
But the two dozen states asking for relief argued otherwise. The surge of illegal immigrants “who are motivated primarily by the belief that they will not be deported… has imposed enormous law enforcement costs on the Plaintiff states,” they stated in the lawsuit.
“The Defendants have made clear that the DHS Directive will operate like the DACA program that came before it — namely, as an entitlement to relief for virtually every applicant who meets DHS’s eligibility criteria…
“At the most basic level, the Directive is a promise to openly tolerate entire classes of undocumented immigrants. In addition, the Directive offers affirmative legal inducements to stay” – including work permits and eligibility for Social Security and Medicare.
Two years ago, Hanen accused DHS of “successfully completing the mission of the criminal conspiracy” by not arresting, prosecuting and deporting a woman who paid $8,500 to a coyote to smuggle her 10-year-old daughter to the U.S. from El Salvador. The plaintiffs reminded the judge that he had declared such a policy “a dangerous course of action” that promotes human trafficking and helps fund illegal drug cartels.
Last December, shortly before he filed the lawsuit, Fox’ Greta van Susteran asked Abbott why Obama’s executive actions were any different than previous amnesties granted by Republican presidents.
“The difference is both the Presidents Reagan and Bush were executing laws that were passed by the United States Congress when they issued those executive orders,” Abbott replied. “What President Obama is doing is he is issuing an executive order because Congress will not pass a law. That's completely different.
“As it concerns the prosecutorial discretion, understand this: While the president or his attorneys may have the discretion whether or not to prosecute someone, they don't have the authority to give rights to people they are not prosecuting and put burdens on other agencies to carry out all these orders.”
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