What United States vs. Texas Means for the Rest of Us

By Center for Immigration Studies, Special for  USDR

In anticipation of Monday’s Supreme Court oral arguments in United States v. Texas, the Center for Immigration Studies has published an overview of the main issues in the case. The Court’s decision “will determine whether Congress is the constitutional master of the immigration system or whether the president now has shared authority with Congress to create immigration policy through  regulation.”

This case, a challenge brought by governors and attorneys general from Texas and twenty-five other states, involves the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, an expansion of the earlier Deferred Action for Childhood Arrivals (DACA) program. Under the programs, an illegal alien becomes “lawfully present” in the U.S. and receives a work permit after an application is reviewed (typically merely rubber stamped) and a fee is  paid.

The states allege that the DAPA program (1) violates the president’s constitutional duty to “take Care that the Laws be faithfully executed”; (2) DAPA was promulgated without public notice and comment; and (3) DAPA is in excess of agency  authority.

Standing is a key issue in the case. Will the Court decide that standing provides a defense to any agency action? If it does, the Court is saying “the president can announce a vast program to suspend the law and provide benefits to illegal aliens prohibited by Congress through administrative action without so much as providing the public an opportunity to comment in  advance.”

View the entire report at:  http://www.cis.org/miano/implications-united-states-v-texas

John Miano, a Center fellow and author of the analysis, writes, “It is no exaggeration to say that United States v. Texas will determine whether America is a nation of laws or whether it has become a banana  republic.”

Other major legal issues  include:

  • Is DAPA discretion?
  • Is DAPA an interpretive rule?
  • Does the Executive have authority to grant DAPA recipients work authorizations?

Nearly all the media attention has been focused on the discretion issue to the exclusion of all the others. Is it really just discretion to not prosecute when, under DAPA, the government is handing out work permits and making illegal aliens eligible to work in the United States as well as to receive Social Security, unemployment, and disability  benefits?

The Obama administration explicitly claims that it has unlimited authority to allow any alien to work — unless Congress explicitly prohibits it. Except that even when Congress explicitly prohibits such work (as with illegal aliens) the president still claims authority to grant it. Obama also claims authority to make any alien “lawfully present” in the United States. In other words, Obama claims to have the power to allow any alien to be in and to work in the United  States.

SOURCE Center for Immigration  Studies

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