This Issue: Court indicates Obama didn't have right to create DACA. But it bars Trump from ending the amnesty -- for now.

Fri, Jun. 19^th

We all were shocked and extremely disheartened when we learned that the Supreme Court in a 5-4 decision ruled that Pres. Trump could not end DACA immediately.

However, the Court did not rule that Pres. Obama's creation of DACA was constitutional, nor did it rule that the current President doesn't have the legal authority to end DACA.

This was not a satisfactory ruling, but it certainly isn't the defeat that many initially perceived it to be; nor the victory that those on the pro-amnesty side are claiming.

WHAT is DACA?

There are two basic parts to DACA. The first being that DHS (Department of Homeland Security) under Pres. Obama exempted from removal illegal aliens who had entered the United States before the age of 16 and before June 2007, and who met certain other requirements. This exemption was originally to last for two years. DHS subsequently implemented a renewal process that extended DACA eligibility for two years. That renewal process is ongoing.

Pres. Obama claimed prosecutorial discretion gave him the authority to do this. This is a mischaracterization of prosecutorial discretion, which is exercised only on a case-to-case basis, not by allowing a broad category of persons to violate the law with impunity. Furthermore, the Executive does not have prosecutorial discretion when it comes to immigration enforcement. It is only when an illegal alien is placed in removal proceedings that an immigration judge has the authority to decide if that individual has a compelling reason to be allowed to remain in the United States.

The other part to DACA, and the one that has largely been ignored in media discussions of the program, is that Pres. Obama gave work authorization to DACA recipients. This allows them to work in the United States without restriction. This is a benefit and in direct violation of federal law.

The Obama Administration attempted to portray DACA as part of an enforcement priority strategy. They claimed they were allocating limited resources for the apprehension and removal of dangerous criminal aliens instead of targeting "otherwise law-abiding" illegal aliens. Few would disagree that law enforcement should prioritize those who present an immediate danger to the community, no matter their immigration status.

But DACA was not simply about how best to prioritize enforcement efforts. It gave affirmative benefits to DACA recipients. Those affirmative benefits were the crux of the legal challenge to DACA. The argument against DACA is that only Congress, not the Executive, has the legal authority to grant immigration benefits to foreign nationals. This is a point of law Pres. Obama admitted many times prior to announcing DACA.

WHAT DID the SUPREME COURT SAY?

The Court ruling yesterday recognized that Pres. Obama's argument about enforcement prioritization was false.

The DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief.

and

But the DACA Memorandum did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief.

The Court blocked Pres. Trump from ending DACA on procedural grounds. The majority opinion, written by Chief Justice John Roberts, who was appointed by Pres. George W. Bush in 2005, held that the Trump Administration's decision was "arbitrary and capricious" and did not follow the guidelines of the Administrative Procedure Act (APA) which regulates rule making and rule recession by the Executive Branch.

What makes this outrageous is that DACA is not a formal regulation, and the Obama Administration did not go through the APA process before instituting it. In fact, it wasn't even the result of an executive order. Pres. Obama had DHS issue a departmental memo directing how the agency was to implement the program.

WHAT HAPPENS NOW?

What the Court essentially did was to punt on the case and, with the 2020 election coming up, put it back on the ballot. Yet, the voters did decide already in 2016, electing the candidate who said he was going to end DACA. It took almost four years for it to work its way up to the Supreme Court, which is why the strategy of litigating every aspect of Pres. Trump's immigration policy has been effective in preventing necessary actions -- actions that are within the scope of his authority.

We won't go into larger controversies about the Court, other than to point out that Chief Justice Roberts' reasoning in several important decisions has been curious, such as when he did not allow the Commerce Department to include a citizenship question on the 2020 Census, using basically the same procedural argument he did in preventing Pres. Trump from ending DACA.

Given that this is an election year and the presumptive Democratic Presidential nominee Joe Biden has promised to keep DACA in place, two big questions remain.

The first is what Pres. Trump will do in light of yesterday's ruling. This morning, the President announced via Twitter that:

We will be submitting enhanced papers shortly in order to properly fulfil [sic] the Supreme Court's ruling & request of yesterday. I have wanted to take care of DACA recipients better than the Do Nothing Democrats, but for two years they refused to negotiate - They have abandoned DACA. Based on the decision the Dems can't make DACA citizens.

This is an ambiguous statement, but it appears that the President intends to follow the procedural requirements set down by the Court to end DACA. It also appears that he wants Congress to pass legislation granting amnesty to DACA recipients.

Given the proximity of the November election, it is unlikely that DACA's future will be adjudicated in the courts or dealt with through legislation before the next Presidential term. If Pres. Trump is reelected, it is expected that he will direct DHS to end DACA while pursuing a permanent amnesty for DACA recipients, and possibly including the larger "DREAMer" contingent. What he would ask for in return is not clear.

If Biden wins in November, there would be no further move to end DACA and the program would remain in place. But there is another twist. The Attorney General of Texas, Ken Paxton, has joined with AGs from six other states in a lawsuit against the federal government challenging the constitutionality of DACA. In 2016, Paxton was successful in persuading the Supreme Court to block DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) which was instituted by Pres. Obama in 2014 along similar lines of DACA.

Paxton announced yesterday:

We are disappointed with today's SCOTUS decision, but it does not resolve the underlying issue that Pres. Obama's original executive order exceeded his constitutional authority. We look forward to continuing litigating that issue in our case now pending in the Southern District of Texas.

So regardless if Biden is elected, or if Trump wins reelection, there is another case that likely will eventually work its way through the courts. If it does, the Supreme Court will not be able to punt based on procedural grounds but will have to grapple with the legality of DACA, which it indicated in its decision yesterday it would not uphold.

However, this is the Roberts Court, so stay tuned.

Eric Ruark, Director of Research

The New York Times: "DACA was an illegal use of executive authority from the start. Clearly, an illegal policy must be reversed in order to restore the rule of law," said Rosemary Jenks, the director of government relations for NumbersUSA, a group that pushes for reduced immigration.

"The Court's decision to require the administration to jump through additional procedural hoops to terminate an unlawful program that was created without jumping through those same hoops makes no sense," she said.

Rosemary's statement on the DACA Supreme Court decision was also picked up by the Los Angeles Times, Voice of America, and the Washington Examiner, among others.

Politico:
Roy was asked about polling that found even the majority of Trump supporters back a DACA amnesty. Roy responded with a reference to the kind of compromise bill that NumbersUSA supported in 2018 and which nearly passed the House.

Roy Beck, president of NumbersUSA, which supports immigration restrictions, said he backs proposals that offer legal status to Dreamers as long as they include other measures which he says Americans support, specifically an end to immigration through family categories beyond spouse and minor children, and a mandate that employers use the electronic E-Verify system to check the work authorization of their employees.

Breibart:
"There is a massive flaw in our enforcement system if people who are known to have committed fraud have not lost their jobs" and been sent home, said Rosemary Jenks, the director of government relations at NumbersUSA. "If their visas have been canceled or not renewed, they are illegal aliens, so we have a massive lack of enforcement for not removing them from the country."

"Every American who graduates this year with a degree should be outraged," she said. "We have tens of millions of Americans out of work, and nobody cares there are these illegal aliens who committed fraud, who don't have authority to work in the United States, and yet who are still here?"

NumbersUSA is proud and excited to announce that we've received the Platinum Seal of Transparency from GuideStar, the world's largest source of nonprofit information!

We're proud to use GuideStar Platinum to share our full and complete story with the world. To reach the Platinum level, we added extensive information to our Nonprofit Profile: basic contact and organizational information; in-depth financial information; quantitative information about goals, strategies, and progress toward our mission.

We need your help to fill in a lot of blanks on nearly 600 congressional races. Yes, nearly 600!

STEP 1: Go to our locator map and check out the Primary candidates for Representative in your own District -- as well as for a Senate race, if your state has one this year.

You'll probably find a lot of blanks because most candidates have not taken our survey and we've not come across them taking immigration positions in the media. In general, you can assume the blanks are masking a poor or bad position. Let's unmask them.

STEP 2: Email Joe by clicking here if you see any comment about one of those candidates taking an immigration position in the newspaper or on the internet. Pay special attention to candidates who are considered competitive for possibly winning the Primary.

Political commentator and writer Ryan James Girdusky has just published his first book.

They're Not Listening: How the Elites Created the National Populist Revolution was released on Tuesday.

Girdusky has two chapters in his book dedicated to the topic of immigration. One each on how to end illegal immigration, and one on the importance of reducing legal immigration.

Girdusky has been very vocal in print, on television, and on social media discussing immigration policy. You can follow him on Twitter @RyanGirdusky.

Watch Girdusky discuss his book and immigration with Mark Krikorian, executive director of the Center for Immigration Studies.

Immigration Newsmaker Video: A Conversation with Ryan Girdusky about his new book, They're Not Listening

True Reformer defeats incumbent GOP guest worker champion

Roy Beck

Tue, Jun. 16^th

Bob Good -- who filled out NumbersUSA's candidate survey and promised to be a True Reformer on 12 top immigration goals -- has unseated incumbent Republican Congressman Denver Riggleman at the Party's primary convention. A key issue in Rep. Riggleman's defeat was the charge that he was a close ally of business lobbies in their desire for more foreign workers.

This Issue: Court indicates Obama didn't have right to create DACA. But it bars Trump from ending the amnesty -- for now.

True Reformer defeats incumbent GOP guest worker champion

Study finds native-born workers outpace immigrants in returning to workplace

Border arrests jumped 36% in May despite additional coronavirus measures

President Trump to renew effort to end legal protections for DACA recipients

SCOTUS rules DACA can stay, for now.