Supreme Court: United States v. Texas - A nation of laws or a banana republic?

Article author: 
John Miano
Article publisher: 
Center for Immigration Studies
Article date: 
14 April 2016
Article category: 
National News
Article Body: 

The Issues and Implications of United States v. Texas

WASHINGTON, DC (April 14, 2016) — 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:
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.


Related articles

Why United States v. Texas is the most important case the Court will decide this year, Dan Stein, FAIR, February 9, 2016.

Supreme Court hearing on Obama amnesties, Chris Chmielenski, NumbersUSA, April 18, 2016.

The Framers wrote Article II's Take Care clause to prevent the President from claiming the same lawmaking powers. The executive shall—not  "may"—execute Congress's laws faithfully, in one of the Constitution's most specific instructions.
Congress has debated a more generous immigration policy during the Obama years, and all the while Mr. Obama insisted he couldn't act alone. "am President. I am not king," he told Univision in 2014. "can't do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen."...

Why United States v. Texas is the most important case the Court will decide this year, Dan Stein, FAIR, February 9, 2016.

The Implications of United States v. Texas, John Miano, Center for Immigration Studies, April 14, 2016.

Must-Read Articles on the DACA and DAPA Programs, Center for Immigration Studies, April 2016.

CAIRCO Research