WASHINGTON – U.S. Sens. Mark R. Warner and Tim Kaine (both D-VA) joined 216 members of Congress in filing an amicus brief with the U.S. Supreme Court in support of the President’s November 2014 executive actions on immigration. The amicus brief encourages the Court to review the Fifth Circuit Court of Appeals decision in United States v. Texas, et al., which blocked 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.

“We are confident that the Supreme Court will support President Obama’s decision to use the authority granted by Congress to set enforcement priorities and focus our limited resources on threats to national security and public safety, not hard-working families,” said Sens. Warner and Kaine today. “President Obama took executive action after extensive legal analysis by the Department of Justice. DAPA and the expansion of DACA will ensure that families will not be torn apart because of Congress’ refusal to address our broken immigration system.”

In 2013, the Senate voted 68-32 to approve bipartisan, comprehensive immigration reform legislation to allow undocumented immigrants to come out of the shadows, support their families, pay taxes and contribute to the economy. However, the Republican-controlled House of Representatives failed to act on the bill.

The amicus brief outlines the imperative of implementing the DAPA and expanded DACA programs, urging the Supreme Court to reverse the decision by the Fifth Circuit and vacate the preliminary injunction blocking the new programs from being carried out. The brief makes the case, from the perspective of 218 Members of Congress, that DAPA and expanded DACA are consistent with Congressional intent and the Executive’s longstanding legal authority to establish national immigration enforcement priorities and exercise discretion in the enforcement of our immigration laws.  As stated in the brief: Congress has “granted the Secretary [of Homeland Security] broad discretion in determining how to carry out the immigration laws, and has explicitly directed the Secretary to establish policies and priorities for enforcement of those laws.”

Members of Congress are deeply concerned that the Fifth Circuit’s decision interferes with Congress’s ability to grant the Executive the flexibility and discretion as necessary to enforce the law in a rational, effective, and efficient manner.  The ruling would instead “force Congress to specifically prescribe every priority and power with detailed enforcement instructions,” the practical effect of which – if allowed to stand – would strip the Executive of broad authority to make discretionary judgments on how best to enforce the nation’s immigration laws where Congress has not prescribed a specific action, and would devastate millions of individuals, families, and communities across the nation.

According to the amicus, “where Congress has chosen to vest in the Executive discretionary authority to determine how a law should be enforced, and the Executive has acted pursuant to that authority, amici have a strong interest in ensuring that federal courts honor Congress’s deliberate choice by sustaining the Executive’s action…The significance of this case to Congress’s ability to ensure rational, effective, and efficient enforcement of federal law by executive agencies cannot be overstated.”

The amicus brief was signed by a total of 34 Senators, and 184 members of the House of Representatives. 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 blocked the implementation of those programs, and on November 9th, a divided panel of the Fifth Circuit Court of Appeals upheld this ruling.  The Administration is petitioning the Supreme Court to review this decision.  The Members’ amicus curiae brief is in support of the government’s petition.

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 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 to implement 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 Fifth Circuit decision undermines Congress’s ability to place critical responsibility in the hands of the agency with the relevant expertise and capabilities.

• The ruling would alarmingly curtail Congress’s ability to delegate discretionary authority to the Executive, forcing Congress to specifically prescribe every priority and power delegated to the Secretary of Homeland Security with detailed enforcement instructions.
• The Fifth Circuit decision interferes with rational, effective, and efficient enforcement of federal law by removing the Secretary’s broad authority to make discretionary judgments on how best to enforce the nation’s immigration laws where Congress has not prescribed a specific action.
• If allowed to stand, the ruling would drastically impair effective administration of our immigration laws, throwing well-established immigration practices into disarray and harming millions of individuals around the country.