One-hundred and thirteen members of Congress – including Senate Majority Leader Mitch McConnell, Sens. John Cornyn and Ted Cruz, House Judiciary Committee Chairman Bob Goodlatte and former House Judiciary Committee Chairman Lamar Smith – are telling a federal court that President Obama’s amnesty-for-illegal aliens program is unacceptable and violates the U.S. Constitution.
“Our position is clear – President Obama’s executive action is unconstitutional and impermissibly disrupts the separation of powers,” said Jay Sekulow, of the American Center for Law and Justice.
His organization is representing those 113 members of Congress – and nearly a quarter-million other Americans “who understand President Obama’s overreach amounted to changing the law.” The friend-of-the-court pleading was submitted to the 5th U.S. Circuit Court of Appeals, which now is considering the dispute.
“This is simply unacceptable. Impatient presidents don’t get to change the law. We’re confident that the appeals court will correctly conclude that President Obama’s action is unlawful and unconstitutional and will upholding the findings of the district court,” Sekulow said.
The organization filed on behalf of the members of Congress and others in a lawsuit that was brought against the president by several dozen states.
WND broke the story earlier this year when a federal judge in Texas granted a temporary injunction halting Obama’s executive-order driven amnesty program.
The ruling from U.S. District Judge Andrew Hanen ordered the government not to proceed with any portion of the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.
In his order, the federal judge said the court found “that at least one plaintiff has satisfied all the necessary elements to maintain a lawsuit and to obtain a temporary injunction.”
“The United States of America, its departments, agencies, officers, agents and employees and Jeh Johnson, secretary of the Department of Homeland Security; R. Gil Kerlikowske, commissioner of United States customs and Border Protection; Ronald D. Vitiello, deputy chief of United States Border Patrol, United States Customs and Border Protection; Thomas S. Winkowski, acting director of United States Immigration and Customs Enforcement; and Leon Rodriguez, director of United States Citizenship and Immigration Services are hereby enjoined from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents,” the ruling said.
That issue now is pending before the appeals court.
The congressional brief argues that Obama’s actions violate the Constitution and the intent of Congress.
Further, in the design of the strategy the government “exceeded the bounds of its prosecutorial discretion and abdicated its duty to faithfully execute the law.”
“The DHS directive creates a new class – the roughly 4 million parents of U.S. citizens (and lawful permanent residents) who are unlawfully in the United States – and grants members of the class deferred removal (among other benefits) if they meet the basic eligibility requirements,” the document explains.
“The government’s creation of a categorical, class-based program is neither moored in constitutional authority nor in authority delegated by a lawful statute passed by Congress.”
The brief continues, “The states are likely to succeed on the merits of their constitutional claim because the DHS directive violates the Constitution, impermissibly disrupts the separation of powers, and amounts to an abdication of the executive’s constitutional and statutory duties. Appellants unconstitutionally legislated by creating a categorical, class-based program not supported by law or established congressional immigration policy.”
There are 25 U.S. senators and 88 members of the U.S. House who are supporting the friend-of-the-court brief.
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It explains, “Congress has created a comprehensive immigration scheme – which expresses its desired policy as to classes of immigrations – but the class identified by the DHS directive for categorical relief is unsupported by this scheme.
“Moreover, the DHS directive, by the admission of the president, changes the law and sets a new policy, exceeding the executive’s constitutional authority and disrupting the delicate balance of powers.”
It continues, “Few enumerated powers are more fundamental to the sovereignty of the United States than the control of the ingress and egress of immigrants. The Constitution vested in Congress ‘all legislative powers,’ … and particularly vested in Congress the exclusive authority to ‘establish [a] uniform Rule of Naturalization..’ In 1817 the Supreme Court recognized Congress’s exclusive authority over naturalization. … Beyond naturalization, the Supreme Court has recognized that Congress has plenary power over immigration, and has said that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ immigration.”
For Obama, the problem is that Congress refused to go along with what he later tried to implement by executive orders.
The dispute elevated to the astonishing when, in his Texas courtroom, the judge bluntly asked a Justice Department attorney whether or not President Obama and federal officials can be believed regarding the administration’s executive action on immigration.
“I can trust what Secretary [Jeh] Johnson says … what President Obama says?” Hanen asked, according to the Los Angeles Times.
Fox News reported the judge even went further, instructing Justice Department attorney Kathleen Hartnett, “That’s a yes or no question.”
She responded, “Yes, your honor.”
Hanen called the hearing because of questions about whether the Justice Department misled the judge by claiming that deportation reprieves would not go forward before he made a ruling. It turned out that federal officials had delayed deportation for 108,000 people for three years and granted them work permits.
The administration had argued the reprieves were granted under a 2012 program that was not impacted by Hanen’s order. But the 2012 program, called Deferred Action for Childhood Arrivals, granted only two-year reprieves, while Obama’s November order allows three-year deferrals.
Hartnett told the judge “government attorneys hadn’t properly explained this because they had been focused on other parts of the proposed action,” Fox reported.
Hanen remained skeptical, and it was then he asked, “Can I trust what the president says?”
The 26 states that brought the lawsuit at that time has asked for sanctions against the federal government because of the misleading statements. Angela Colmenero, a lawyer from Texas, said the federal government provided “representations” that eventually proved untrue or “less than forthcoming.”
House Speaker John Boehner also has listed online 22 times when Obama has made statements that he is not allowed to do what he did.
For example, in October 2010, Obama said: “I am president, I am not king. I can’t do these things just by myself. … I’ve got to have some partners to do it. … If Congress has laws on the books that says that people who are here who are not documented have to be deported, then I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as opposed to families who are just trying to work and support themselves. But there’s a limit to the discretion that I can show because I am obliged to execute the law. … I can’t just make the laws up by myself.”
The Texas lawsuit was filed when the states suddenly faced massive new demands for public services such as schooling and health care from foreigners who previously had been subject to deportation.
WND also reported when yet another a federal judge in Pennsylvania declared the amnesty unconstitutional.
“President Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause and, therefore, is unconstitutional,” said U.S. District Judge Arthur J. Schwab.
The judge noted Obama “contended that although legislation is the most appropriate course of action to solve the immigration debate, his executive action was necessary because of Congress’ failure to pass legislation, acceptable to him, in this regard.”
“This proposition is arbitrary and does not negate the requirement that the November 20, 2014, executive action be lawfully within the president’s executive authority,” the judge wrote. “It is not.”
