Can the President Declare Millions of Persons ‘Lawful’ Without Permission From Congress?

COMMENTARY: Catholics are asking whether there’s an irresolvable tension between our duty to act with charity toward migrants and our duty to respect duly-enacted immigration law.

(photo: Register Files)

One of the most important decisions a country or state must make is who will be considered a lawful resident and who is deemed an “illegal alien.” Ancient Greek city-states such as Athens had a class of people known as metoikoi or metics, people who were permitted to live in the city but who were not full citizens. Similarly, to become a Roman civis was no easy task, and there remained a line between citizens and non-citizens, even during the period of the Roman Empire. 

The current era of easy transportation and rising wealth has brought a new era of mass migration. Europe is presently wrestling with how to treat the migrants coming to its nations’ borders. Some of these are fleeing religious persecution, such as the Middle-East Christians, and others the economic and social dislocations caused by civil strife or oppressive governments.

The Church has long practiced and promoted solicitude for the plight of migrants, especially those coming from troubled countries. Her concern is, however, pastoral — not legislative.

The Church recognizes we’re all of one human family, and each owes duties to others. For example, the Catechism of the Catholic Church, drawing on the Fourth Commandment, enjoins citizens of more prosperous nations to “welcome the foreigner in search of security” (2241). This welcome isn’t, however, absolute or unlimited. Countries may “make the right to immigrate subject to various juridical conditions.” What conditions may be permissible is largely left to the prudential judgment of the countries involved.

A U.S. Supreme Court case confronts directly this tension between practicing charity toward migrants and a government’s duties to its citizens. It also confronts the issue of executive power: How far can a president go to impose regulations contrary to congressional will? One commentator has described this case as the most important one the court will hear this term, as it strikes at a central principle of American government — the separation of powers.

The Supreme Court will decide this spring whether the president can declare millions of persons as “lawful” without direct permission from Congress to do so. The case, United States v. Texas, arises out of two programs enacted by the Department of Homeland Security: the “Deferred Action for Childhood Arrivals” program (DACA), which was enacted in 2012; and the “Deferred Action for Parents of Americans” program (DAPA), which was enacted two years later and essentially expanded the reach of DACA.

Each program designates that millions of currently undocumented aliens will now have what is known as “lawful status” under certain circumstances. Once granted lawful status, such aliens become, among other things, harder to deport and eligible for a variety of public benefits, such as Social Security and Medicare.  

On their face, these programs seem to make sense. The government doesn’t have the resources to deport everyone here in violation of the law — there may be at least 11 million such persons. Thus, by deferring for some period of time the deportation of those who meet the DACA and DAPA guidelines, proponents of DACA and DAPA argue that limited government resources could be focused on deporting those who pose the most danger, such as criminals.

Additionally, many believe it’s unjust to now deport people who were brought to the U.S. illegally as children and raised here or to deport undocumented aliens who are parents of children who are citizens. Proponents of DACA and DAPA, then, believe these programs also further the purpose of keeping families together.

Texas challenged DACA and DAPA and has been joined by a majority of the states. Their argument is straightforward: The executive branch may not declare lawful what Congress has declared unlawful. The term “lawful status” has meaning in immigration law, but here DACA and DAPA accord lawful status to persons in a way different from the way Congress has directed. The states argued in their brief that “Congress drastically limited when family unity can serve as a basis for obtaining lawful presence.”

DACA and DAPA add substantial burdens to the states with substantial populations of deferred aliens. Although immigration is a federal issue, immigrants come to a particular state, not the United States in general. Upending congressional statutory schemes enacted by representatives of those states is an abuse of power, the states are essentially arguing.

Two federal courts agreed, finding that the programs exceeded executive authority and imposing a nationwide injunction on DAPA. 

The appellate court found that the states were entitled to an injunction because there was a likelihood they would succeed on their claims at a trial. The court found that even if Homeland Security had followed appropriate procedures to enact the programs, DACA and DAPA were “substantively unlawful” because Congress has already enacted ways for aliens to receive “lawful status.”

Although the states have acknowledged before the Supreme Court that the president has wide authority not to deport certain persons, these programs replace that kind of discretion with a wide grant of the protected status of “lawful presence” to thousands of people. After that grant, they assert, the chance of individualized executive review becomes too remote to be meaningful. The government maintains in its briefs that DACA and DAPA do not change the fact that such persons remain in the country at the discretion of the government and “are subject to removal proceedings at any time and gain no defense to removal” by being subject to the programs.

The appellate court further stated: “DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’ stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.” Therefore, the states themselves were allowed to sue for an injunction, as they would be materially affected if the programs were allowed to proceed. To accept the government’s position would enable Homeland Security, through DAPA and DACA, to act in a way that existing immigration laws “flatly do not permit.”

The dissent argued that states had no legal standing to bring this case and that, in any event, DAPA and DACA were legitimate uses of discretionary executive power.

The government then asked the Supreme Court to hear the case. But, interestingly, in January of this year, when the court granted the petition to hear the case, the court asked the parties to address a new issue in addition to the technical and thorny administrative-law questions presented to the court. The justices want the parties to address whether the president exceeded his authority pursuant to his responsibility under Article II of the Constitution to take care “that the laws be faithfully executed.” This could be a signal that the court is unhappy with the executive discretion of DACA and DAPA and wants to hear the government’s explanation of how it is executing faithfully the immigration laws established by Congress. Since that time, however, with the passing of Justice Antonin Scalia, the court is down to eight members. A split vote would uphold the injunction and put DACA and DAPA on hold until a new administration arrives in Washington to either dismantle or change the programs. Much of the oral-argument time was taken up with arguments over whether the states had standing to sue and the meaning of the term “lawful presence,” and the Article II question was not raised.

The case represents a stark example of the difference between laws in the abstract and what is required of agencies tasked with executing the laws. On the one hand, Congress sends a strong message about immigration with legislation that sets strict parameters as to who can lawfully remain in the country. On the other hand, it doesn’t fund Homeland Security sufficiently to enable the agency to actually deport the millions of people the law would require. So the department needs to make distinctions regarding which aliens to focus on. But that decision is subsequently challenged by states such as Texas on the grounds of principle regarding the separation of powers and on grounds of practicality regarding the burden such executive decisions place on the states that will bear most of the burden.

The principle grounds — regarding the Constitution and the separation of powers — may be more important, however.

As Catholics know from experience with the religious-freedom debates over the HHS mandate, allowing an executive to carve out rules to further an agenda not necessarily shared by the people expressed through their legislators is dangerous territory.

Gerald J. Russello is a lawyer and editor of The University Bookman.