The Senate Judiciary Oversight Subcommittee held a hearing yesterday on the implications of Texas v. United States - the case 26 governors and attorneys general brought against President Obama’s executive amnesties. Kris Kobach, the Kansas Secretary of State and former immigration advisor to U.S. Attorney General John Ashcroft, cited three reasons why the executive amnesties are unlawful: “(1) the executive actions do not comply with the requirements of the Administrative Procedure Act (APA); (2) even if they did comply with the APA, they would still be in direct violation of substantive provisions of federal law; and (3) even if they did not violate federal law, they would still be unconstitutional.”
Below are excerpts from his testimony.
On APA Non-Compliance:
“The APA requires that agencies implementing federal statutes in whole or in part do so through rulemaking… An administrative action that establishes criteria for exception from removal from the United States and defines a class with affirmative eligibility for benefits is quintessentially a “rule” under the APA… DHS has set out in [directives] a determination of future rights, privileges, and benefits. In so doing, the Administration has attempted to bury, outside of the APA, rulemaking decisions that have the ‘inherently arbitrary nature of unpublished ad hoc determinations.’… A central facet of the APA is the exposure of a proposed rule to public comment and criticism…By attempting to make this policy change through executive fiat, DHS avoided this public scrutiny and plainly violated the terms of the APA.”
On Violations of Federal Law:
“In 1996…(f)rustrated with executive non-enforcement of federal immigration laws, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)…Congress inserted several interlocking provisions…to require removal when immigration officers encounter illegal aliens…8 U.S.C. § 1225(a)(1) requires that “an alien present in the United States who has not been admitted…shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3), which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A), which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a are removal proceedings in United States Immigration Courts.
“The DACA and DAPA Directives order the ICE officers to violate these provisions of federal law by declining to place certain aliens into removal proceedings, when federal law clearly requires them to place such aliens into removal proceedings…Through IIRIRA, Congress circumscribed the executive branch’s discretion not to pursue the removal of illegal aliens.. If an illegal alien is encountered by DHS, an inspection must occur, and if that illegal alien is not entitled to be admitted to the United States, he or she must be placed in removal proceedings. Any subsequent relief, whether it be through asylum, cancellation of removal, or withdrawal of removal, must be authorized by federal statute. Wholesale grants of “deferred action” are no longer possible after IIRIRA.
“The Obama Administration protests that the DACA and DAPA Directives enable them to prioritize their allocation of limited enforcement resources more efficiently than the automatic approach of IIRIRA. They may or may not have a good policy argument. But they no longer have the legal authority to set policy in that respect – Congress has done it for them.”
On Violation of the Constitutional Separation of Powers:
“Article I, § 1, of the United States Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States”…DACA and DAPA constitute an exercise of legislative power by an executive agency and represent an aggrandizement of the executive branch at the expense of the legislative branch. Consequently, the Directives plainly violate the constitutional separation of powers.
“The Development, Relief, and Education for Alien Minors Act (DREAM Act), in various forms, has been proposed in Congress at least 24 times. DACA is a mirror image of the DREAM Act…[which] has never been passed by both houses of Congress and signed into law by the President. But the fact that the Act has been proposed in Congress…indicates Congress’s plain understanding that federal legislation is required in order to achieve these objectives.
“(T)he Directives are legislative in nature. They attempt to confer continued presence in the United States, as well as employment authorization, on all aliens meeting specified criteria. The conferral of legal rights and privileges to a large class of persons meeting certain criteria is a legislative act…Only Congress has the authority to make such a large class of individuals eligible for employment authorization in the United States…They therefore constitute an attempt by one branch to exercise the powers of another.
“(T)he Directives unconstitutionally aggrandize the executive branch at the expense of Congress. Congress has repeatedly considered and rejected enactment of essentially the same provisions embodied by the Directive. Rather than wait for Congress to adopt the executive branch’s way of thinking regarding the proposed DREAM Act and other amnesties, the Administration usurped Congress’s role and attempted to impose the same legislative changes under the guise of “prosecutorial discretion.”
On Possible Congressional Responses:
“[What should Congress] do in response to the executive branch’s violation of federal law and the Constitution… [An advisable response is] exercising Congress’s power of the purse to restrict any appropriations that might be used to fund the Directives. Although this approach has recently faltered in the Senate, it is unquestionably the strongest response that Congress has available.
“(C)ongress should also consider taking steps to ensure that the federal courts retain jurisdiction over the cases challenging the Directives. Because of the weakness of the Administration’s position on the merits, the Department of Justice has been particularly aggressive in challenging the jurisdiction of the federal courts in both Texas and Crane. If the Department of Justice is successful in this regard, it will have persuaded the federal courts that they cannot review the constitutionality and legality of what is arguably the greatest executive usurpation of legislative power in the past century.”
Read the full testimony.
Updated: Wed, Oct 11th 2017 @ 3:13pm EDT