Cato Institute Files Amicus Brief Supporting State Lawsuit Against Executive Amnesty

The Cato Institute, along with several law professors, has filed an amicus brief supporting the lawsuit filed by 26 states challenging President Obama’s executive action to grant amnesty and work permits to millions of illegal aliens. Joining Cato in the brief are South Texas College of Law professor, Josh Blackman, George Mason University School of Law professor, Jeremy A. Rabkin, and Roger Williams University School of Law professor, Peter S. Margulies.

In a release, Cato argues “that DAPA violated the president’s constitutional duty to take care that the laws were faithfully executed because this action went far beyond merely setting priorities on who will be pursued and deported given finite enforcement resources.”

While much of the states’ standing is based upon the harm and financial burden that executive amnesty would place on them, Cato’s brief focused more on the constitutional issue of the president bypassing Congress and using executive authority to grant amnesty to illegal aliens.

Cato has now filed a brief on the underlying appeal that again supports the 26 states and argues that President Obama’s action amounts to an illegal expansion of executive authority. While the lower court did not reach this constitutional issue, the president’s duty to faithfully execute the laws is a cornerstone of our separation of powers and provides the background architecture upon which the administrative state has been constructed.

Our message is simple: the implausible defense of the president’s unilateral executive action requires a level of legal sophistry that puts Humpty Dumpty to shame. As Justice Robert H. Jackson recognized six decades ago in the seminal case of Youngstown Sheet & Tube Co. v. Sawyer (the “Steel Seizure Case”), presidential lawmaking that lacks congressional support “must be scrutinized with caution.”

Such scrutiny will reveal that, even though Congress has previously authorized deportation deferrals and accompanying work permits, DAPA amounts to a deliberate effort to bypass Congress and conflicts with five decades of congressional immigration policy. The government implores the judiciary to believe that DAPA is a humdrum exercise of prosecutorial discretion based on modest new policy guidance that enable the Department of Homeland Security to prioritize resources. Don’t believe it.

While the injunction issued by Federal Judge Andrew Hanen of the Southern District of Texas blocking the implementation of much of the president’s amnesty is still in place, the administration has appealed to the U.S. Fifth Circuit Court of Appeals.

Read the Cato Institute’s amicus brief