By: Andrew C. McCarthy – nationalreview.com – June 22, 2024

Can our constitutional checks and balances do anything about it?

Earlier this week, NR’s editors weighed in on President Biden’s executive order purporting to grant a large category of illegal aliens — namely, spouses of Americans — de facto amnesty and legal benefits that only Congress has the constitutional authority to confer. You should read our James Lynch’s report, too. I also recommend this political analysis by Charles C. W. Cooke, including his animating question: “Might we conclude from this dimwitted decision that the White House policy team has taken a liking to magic mushrooms?”

My purpose here is to emphasize just how lawless Biden’s fiat is — and to wonder whether our constitutional checks and balances are still strong enough to do anything about it.

This Is Not ‘Prosecutorial Discretion’

The amnesty for illegal-alien spouses is modeled on two Obama-era usurpations of congressional power wildly celebrated by the media–Democrat complex: Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA). This, naturally, is why Biden, whose constitutional oath is to enforce the laws faithfully, made his announcement at an anomalous White House celebration of DACA’s twelfth anniversary.

DACA — and DAPA, which built on it in late 2014 — followed numerous public concessions by Obama–Biden administration officials, including President Obama, that the executive branch lacked the constitutional authority to grant legal status and positive benefits to non-Americans who have no lawful right to be present in the United States. Obama being Obama, when Congress declined to bend to his will by conferring legal status on “Dreamers” — aliens who claim to have entered illegally as minors through no agency of their own — he ignored his earlier admissions of impotence and purported to unilaterally grant this category de facto amnesty along with many benefits the law reserves for Americans, including authorization to work and so-called entitlements.

Even in their hubris, the Obama–Biden edicts referred to deferred enforcement action, not amnesty — a notable concession.

The edicts were a distortion of the doctrine of prosecutorial discretion. Prior to the Obama–Biden years, this was simply an unavoidable resource-allocation guideline — there is more crime than there are resources to address crime, and thus the executive branch has discretion to target its resources at what it assesses to be the most urgent public needs, even though this necessarily means some wrongs will go unaddressed. Importantly, an exercise of discretion to decline prosecution of unlawful activity does not excuse the activity; it is simply an acknowledgment that tackling more serious malfeasance is a higher priority.

Insidiously, what the Obama–Biden administration dubbed “prosecutorial discretion” was, in reality, a dereliction of the president’s constitutional duty to take care that the laws be faithfully executed. (See my 2014 book, Faithless Execution.) When applied in good faith, prosecutorial discretion is a case-by-case exercise: The executive branch decides whether to prosecute an individual offender based on the seriousness of the crime and the offender’s background (very much including ties to the United States or lack thereof). Properly understood, prosecutorial discretion is not a pretext for the president, in the absence of a good-faith constitutional objection, to decline to enforce congressional statutes that the president eschews as a matter of policy.

But, again, Obama being Obama, the labeling of DACA and DAPA was deceptive: The executive branch was not merely deferring enforcement action; it was conferring public benefits. It is not enough to say that the president has no power to do this on his own, or even to fill in arguable gaps in congressional statutes. In this instance, Congress has enacted a comprehensive statutory framework. It defines who is and is not entitled to legal immigration status in the United States, and it exactingly prescribes how the status of aliens may be adjusted on a scale from illegal, to lawfully present, to immigrant, to permanent resident, and ultimately to American citizen. Congress’s framework, moreover, elaborately regulates the dispensing of public benefits — at least those provided federally — based on immigration status.

Hence, a president who purports to grant benefits inconsistent with Congress’s reticulated legislation acts lawlessly: Under standard Supreme Court analysis, when acting in contravention of Congress a president is at the lowest ebb of his power, reduced to relying on his own constitutional authority. (See Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the 1952 “Steel Seizure Case.”) When it comes to conferring immigration status and public benefits, presidential authority is negligible.

In reality, “prosecutorial discretion” does not endow a president with authority to unofficially repeal constitutional laws by refusing to enforce them. Yet, even if we assumed for argument’s sake that it did, there is not even a crackpot theory supporting the proposition that presidents are empowered to legislate benefits. Indeed, among the Constitution’s principal objectives is to prevent legislative and executive powers from being wielded by the same set of hands. Presidential legislation of positive benefits is blatantly illegal — an impeachable usurpation of power.

Making Matters Worse: A Feature Not a Bug

Biden, like Obama before him, is trying to bulldoze the Constitution’s constraints by fabricating illegal-alien categories that tug on the heartstrings: Aliens who entered illegally as “children” (many old enough to be teenage gang members or young operatives of hostile regimes; many adults who claim to have come as children); the “family unification” of Americans with adult aliens who willfully entered illegally but claim to be their parents (among other, more attenuated relations); and now, adult aliens who willfully entered illegally but claim to be spouses of Americans (a not insignificant percentage of whom “marry” fraudulently in order to obtain or confer lawful immigration status).

As James Lynch reports, there are 1.1 million people in this last category; it’s estimated that Biden’s fiat (labeled “parole in place”) would grant benefits to half a million of them, including a fast-track to citizenship.

Wholly apart from the lawlessness of these initiatives, they undermine the potential for immigration legislation that Washington pretends is the only real “reform” that can fix our “broken system.”

First, presidentially declared amnesties for illegal aliens diminish the immigration prospects of aliens who follow American law in attempting to immigrate here — an arduous process in which many very sympathetic people are mired.

Second, any legislative fix for immigration is going to require compromise that would call for border hawks to agree to some quantum of amnesty. Why should they agree to a legislated compromise, however, if Democratic presidents heedlessly extend quasi-amnesties in a manner that incentivizes millions more illegal aliens to seek entry?

Third, and consistent with Charlie Cooke’s points, it is not 2012 anymore. The sympathy Americans have harbored for “dreamers” is threadbare thanks to Biden’s destruction of border security — along with the dawning realization that the Obama–Biden dreamer rhapsody was just a foot in the door to other broad-based amnesty programs that, inexorably, turbo-charge illegal immigration, to the great detriment of U.S. national security. At this point, Americans increasingly want to know how the government intends to deal with the millions of “migrants” Biden has lawlessly admitted, not how he is going to further exacerbate the border catastrophe by more lawless amnesty grants.

Texas I

But let’s get back to lawlessness.

The 2012 Obama DACA edict was issued as nothing more than a Department of Homeland Security (DHS) memo. It was not put out as a proposed agency rule, nor was there any effort to comply with the “notice and comment” requirements of the Administrative Procedure Act (APA). In September 2017 — i.e., five years later and about eight months after President Trump took office — DHS announced that DACA would be phased out.

In the interim, the Obama administration in 2014 endeavored to expand DACA while simultaneously promulgating DAPA. By 2015, the Fifth Circuit concluded that, without any action by Congress (you know, the branch of government actually empowered to confer legal status on aliens), the three programs — DACA, Expanded DACA, and DAPA — offered legal status to 5.8 million illegal aliens (i.e., more than half of the population of 11.3 million illegal aliens then estimated to be in our country). (See United States v. Texas, 809 F.3d 134, 148 (5th Cir. 2015.))

A total of 26 states sued to enjoin the implementation of Expanded DACA and DAPA. Judge Andrew Hanen, a George W. Bush appointee to the Southern District of Texas bench, issued an injunction in 2015. In its decision just cited above, the Fifth Circuit upheld Judge Hanen’s ruling, relying on Congress’s comprehensive statutory framework — set forth in Title 8 of the United States Code, in which such major laws as the 1965 Immigration and Nationality Act and the 1986 Immigration Reform and Control Act are codified. The Circuit concluded that this framework “flatly does not permit the reclassification [by the executive branch] of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization” (Id., at 184-86). This judgment was affirmed because the Supreme Court, then down to eight members after the death of Justice Antonin Scalia, was equally divided. Because of the elaborate history of this litigation, this DAPA-focused phase is known as Texas I.

Changing the Facts on the Ground

The ensuing, ongoing Texas II litigation, focused on DACA, has been driven by three things: The now-textbook Obama–Biden strategy of dramatically altering facts on the ground when shredding the Constitution; the policy incoherence of the Trump administration in dealing with the chaos intentionally caused by Obama–Biden lawlessness; and the political scheming of Chief Justice John Roberts, who occasionally prioritizes preening collegiality with the Supreme Court’s progressive bloc over faithful adjudication — especially when a sound ruling is certain to be greeted by leftist caterwauling and Democratic threats to overhaul the Court.

Reminiscent of its Iran nuclear deal’s roughshod ride over the Constitution’s treaty procedure, the Obama–Biden administration acted quickly to implement its lawless immigration program — in this instance, DACA — such that, as a practical matter, no successor Republican administration would be able to undo it by simply disavowing it. Through its use of raw executive power from 2012 through 2016, hundreds of thousands of illegal aliens were given not just protection from deportation, but also such public benefits as Medicare and Social Security and such state benefits as identification, state-subsidized work-study programs, and work authorization (application for work authorization being a condition of DACA enrollment, notwithstanding statutory prohibitions on work authorization for illegal aliens).

Of course, if one is claiming that a program is illegal and unconstitutional, as the new Trump administration contended DACA was, the proper action would be to cease the program immediately. After all, DACA and its subsequent expansion had not been established through any formal administrative process, and even the Obama implementation memo conceded that it created no enforceable rights and could be rescinded at any time. Nevertheless, for months, the Trump administration continued to administer it, endorsing the Obama “prosecutorial discretion” farce that the president could legitimately decline to enforce the immigration laws, even if DACA’s positive legal benefits were constitutionally suspect.

In their defense, Trump officials were trying for an orderly phase-out of DACA rather than a shock-the-system renunciation. No good deed goes unpunished, though. The wind-down effort was challenged by aliens and immigration activists in friendly jurisdictions (just as the red states had filed their suit in Texas).

Roberts’s Regents Politicking

After lower federal courts in blue states entered injunctions against the program’s nullification, the Supreme Court intervened in Department of Homeland Security v. Regents of the University of California (2020). Joining with the Court’s then-existing four-justice bloc of progressives (Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor), Chief Justice Roberts remarkably concluded that the Trump administration had violated the APA in winding down DACA — notwithstanding that DACA was patently illegal and that the Obama administration had not complied with the APA in establishing DACA. Therefore, the majority reasoned, Trump’s DHS and Justice Department had given insufficient weight to the reliance aliens had placed on DACA benefits over the years — notwithstanding that the benefits ran afoul of congressional law, and the aliens had no valid reason to rely on a program that warned them it could be rescinded at any time.

In so finding, Roberts noted that the Trump Justice Department had not questioned the Obama–Biden claim that forbearance from enforcement of Congress’s laws was within the executive branch’s lawful discretion. Hence, the majority held, the Trump administration’s decision to scrap not only DACA benefits but forbearance from enforcement was “arbitrary and capricious,” in violation of the APA.

This was absurd, as conservative justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Bret Kavanaugh explained in opinions dissenting in various ways from the majority’s reasoning. Justice Thomas’s synopsis is worth quoting at length:

Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong – the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.

Perhaps even more unfortunately, the majority’s holding creates perverse incentives, particularly for outgoing administrations. Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration. [Emphasis added.]

All that said, Roberts’s majority opinion was not an endorsement of DACA. To the contrary, as Justice Kavanaugh observed in his dissent, all nine justices agreed that the executive branch “has the legal authority to rescind such a policy and resume enforcing the law enacted by Congress.” As the above elucidates, it was wrongheaded to impose APA strictures on the rescission of an illegal policy — especially given that Obama–Biden officials had not even tried to comply with the APA in implementing DACA. Still, even in bowing to the progressive fondness for administrative procedures, Roberts’s Regents opinion is basically a how-to manual on the way to go about scrapping DACA in compliance with the APA.

It just takes a few years. No problem, right? I mean, it’s not like we have a border crisis.

Lawless — So What Are You Going to Do about It?

It is a testament to Biden’s determined lawlessness that anti-amnesty states have used Regents, the ruling that ostensibly saved DACA, to dismantle DACA by illustrating that it is even more indefensible when the APA is factored in.

In 2018 (i.e., two years before the high court’s Regents ruling), the states that had earlier prevailed against DAPA and Expanded DACA filed a new lawsuit in Texas, challenging DACA as it had been promulgated in 2012. (They were attempting to secure the result they’d thought they achieved in 2015.) Judge Hanen put the case on hold while awaiting the Supreme Court’s resolution of Regents. Following that decision, Hanen invited briefing by both sides regarding its application. In July 2021, Hanen ruled that the original Obama–Biden DHS DACA Memo was unlawful on procedural and substantive grounds. He vacated DACA and, though that order was stayed while the pro-alien activists appealed, Hanen enjoined DHS from processing new applications.

The Fifth Circuit resoundingly affirmed Judge Hanen (Texas v. United States, 50 F.4th (5th Cir. 2022)). The three-judge panel, adhering to Regents, concluded that the Obama–Biden administration’s DACA Memo was a substantive rule that purported to create rights; therefore, its implementation without notice and comment violated the APA. The Circuit further found that DACA ran afoul of the APA because its provisions contravened Congress’s statutory immigration mandates — administrative agencies are authorized to act consistent with federal law, not to effectively repeal federal law.

Meanwhile, the Biden administration endeavored in August 2022 to gum up the administrative gears by issuing a “final rule.” This deceptive gambit purported to comply with the APA, including notice and comment, in implementing DACA. In reality, it mulishly reaffirmed DACA without regard to the courts’ well-founded conclusions that the program violated federal law — thus flouting the APA, under the provisions of which agency rules that patently violate the statutes they purport to construe are arbitrary, capricious, and ultra vires.

Rather than grapple with Biden’s new “final rule” in the middle of deciding the DACA case, the Fifth Circuit decided the 2012 DACA-memo issues (affirming Hanen, as noted above) and then remanded the proceedings back to Hanen; the judge was directed to determine whether there were material differences between the 2012 Obama–Biden DACA memo and the Biden DHS’s 2022 DACA “final rule.”

On September 13, 2023, Hanen issued a meticulous 40-page opinion, demonstrating that there were no material differences between the 2022 Biden final rule and the 2012 Obama–Biden DACA memo the Fifth Circuit had found to be illegal. That’s no surprise. What is notable, however, is the Biden administration’s brazenness — which Hanen diplomatically portrays as admirable transparency. In a word, the administration is defiant in asserting its intentions to confer benefits in unambiguous violation of Congress’s immigration laws.

The administration is now appealing Hanen’s decision to the Fifth Circuit. Manifestly, Biden officials anticipate losing again; they’re banking on another Supreme Court showdown. Maybe there, they can pull another Regents-like rabbit out of the hat — although that will be tougher, given that (a) the APA is now a measure of DACA’s lawlessness rather than an excuse for sustaining it; and (b) with only three progressive justices (there were four in Regents), it has become harder for Roberts to avoid sound rulings that agitate the political Left. The administration hopes its ace in the hole is standing — the question of whether the states have the right to be heard (as I outlined in a column on Thursday). What is remarkable, though, is that I don’t think the administration much cares about what the courts say. Biden’s election-year objective is to show his anti-enforcement, open-borders, transform-America supporters that he is willing to disregard statutory law on their behalf — to keep catalyzing illegal immigration by enhancing its enticements.

Take note: Biden is not defending his actions by insisting they are legal. Quite the opposite. He claims that states lack standing to challenge him; that “prosecutorial discretion” means no one can make him enforce the immigration laws; and that judges should put aside their stodgy separation-of-powers doctrine and defer to the “expertise” (i.e., the progressive preferences) of administrative agencies.

That is what the new, lawless extension of “deferred action” and “parole” to illegal-alien spouses is about: defiance of the law and arrogant confidence that raw executive power can nullify constitutional restraints with impunity. Courts and lawmakers have proved powerless to stop this aggression. Biden is betting that come November, with Donald Trump as their only alternative, voters will cave, too.

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Source: Biden Amnesty Plan: Joe Biden’s Outrageous Immigration Fiat | National Review