181 House Members File Amicus Brief in Court to Support President Obama's Immigration Executive Actions

Press Release

Today, Democratic Whip Steny H. Hoyer joined Democratic Leader Nancy Pelosi, Assistant Democratic Leader James E. Clyburn, Democratic Caucus Chair Xavier Becerra, Democratic Caucus Vice-Chair Joseph Crowley, Congressman John Conyers, Congresswoman Zoe Lofgren and other House Democrats in filing an Amicus Brief in support of the Obama Administration's appeal in the Fifth Circuit case of Texas v. United States.

"I am proud to stand with the President and with immigrant families by joining this amicus brief," Whip Hoyer said. "I am confident that our courts will uphold the President's executive authority to set immigration policies so that law enforcement can focus on deporting criminals and not splitting families apart. If Republicans wish to change our policies, all they have to do is work with Democrats to pass a bipartisan, comprehensive immigration reform bill, which is what a majority of Americans support."

181 House Democrats filed the brief on Monday in the appeal of Texas v. United States, which has reached the U.S. Fifth Circuit Court of Appeals following a federal district court ruling that granted a preliminary injunction that temporarily blocks the Secretary of Homeland Security from implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanding the Deferred Action for Childhood Arrivals (DACA) program, announced by the President of the United States last November as part of his Immigration Accountability Executive Actions.

In supporting the government's position, the brief expresses the perspectives of Members of Congress that the deferred action programs (DAPA/expanded DACA) comport with Congressional will. The deferred action programs derive from the Executive's longstanding legal authority to exercise discretion in the enforcement of our immigration laws, to take necessary actions to carry out the Executive's authority under the Immigration and Nationality Act, and to establish national immigration enforcement policies and priorities. As such, they are traditional exercises of prosecutorial discretion that have been frequently used by administrations of both political parties for more than sixty years and repeatedly recognized by federal courts, including the Supreme Court. As stated in the brief: "Congress has vested the Secretary of Homeland Security with broad discretion to determine how best to implement the immigration laws, including the particular decisions embodied in the Deferred Action Memorandum."

The brief argues that House Democrats, as representatives of diverse communities across the United States, "have witnessed how an approach to enforcement of the immigration laws that does not focus on appropriate priorities, such as felons or national security threats, undermines confidence in the Nation's immigration laws, wastes resources, and needlessly divides families." These deferred action programs are vital for appropriately using limited enforcement resources, shoring up America's economy and strengthening families.

As stated in the brief, the district court's ruling extends much broader than its procedural rationale under the Administrative Procedures Act, as it challenges "Congress's decision to commit to the Secretary the discretion to set enforcement priorities and to determine how best to implement those priorities--including, if necessary, by channeling how subordinate agency personnel exercise their own discretion in enforcing federal law." The Democratic Members' brief makes it clear that the district court's decision interferes not only with the Executive's authority granted by Congress, but also Congress's authority: "The ruling therefore threatens the Executive's ability to enforce statutes, within resource constraints, in a manner that remains faithful to Congress's intent, and in turn threatens Congress's ability to enact effective legislation."

Full text of the amicus brief can be found here.

Additional Background:

On November 20, 2014, the Obama Administration announced plans to expand the Deferred Action for Childhood Arrivals (DACA) program and to create a new Deferred Action for Parental Accountability (DAPA) program to offer temporary protection from removal to the parents of American citizens and lawful permanent residents. On February 16, 2015, a federal district court in Texas preliminarily enjoined the implementation of those programs. The Administration is appealing that decision and has requested expedited consideration of the appeal. The Democratic Members' amicus curiae brief is in support of the government's appeal.

Summary of key points:

Congress has entrusted the Secretary of Homeland Security with broad discretion in the enforcement of the Nation's immigration laws.

For decades, Congress has repeatedly recognized the executive branch's authority to exercise discretion in the enforcement of our immigration laws.

When the Immigration and Nationality Act was first enacted in 1952, Congress authorized the Executive to adopt regulations, issue instructions, and take other acts necessary for implementing the law.

With the creation of the Department of Homeland Security in 2002, Congress explicitly directed the Secretary of Homeland Security to establish "national immigration enforcement policies and priorities." The one guideline that Congress has repeatedly imposed in recent years is that the Secretary should prioritize the identification and removal of people convicted of crimes based upon the severity of those crimes.

Courts have long recognized that Congress left it up to the Executive to determine how best to implement the immigration laws.

When the Fifth Circuit rejected a similar challenge brought by the State of Texas to the Federal government's immigration enforcement efforts, the court recognized that our immigration laws "commit[…] enforcement of the INA to [the Secretary's] discretion."

Just three years ago, the Supreme Court explained that the "broad discretion exercised by immigration officials," including "whether it makes sense to pursue removal at all," is "[a] principal feature of the removal system."

The deferred action programs are a rational and effective way to prioritize enforcement and carry out the will of Congress.

The issuance of the memorandum is unreviewable under the Administrative Procedures Act and fulfills the Executive's constitutional duty to faithfully execute the law. And even if it were reviewable under the APA, the issuance of the memorandum would not trigger the APA's notice-and-comment requirements.

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