DACA’s Demerits

IRLI urges Supreme Court to declare Obama’s vast executive amnesty unlawful

WASHINGTON – Today the Immigration Reform Law Institute (IRLI) filed two friend-of-the-court briefs in the U.S. Supreme Court in three related cases in which federal appellate courts have found that the Trump administration unlawfully rescinded the Obama-era Deferred Action for Childhood Arrivals (DACA) program. The Court is considering all three cases together.

One of these briefs, which IRLI filed on behalf of labor groups Save Jobs USA and the Washington Alliance of Technology Workers (Washtech), focuses on challenging the work authorizations in DACA. DACA does not merely provide protection from deportation to its beneficiaries, but purports to legalize their employment in the U.S. As IRLI shows in its brief, and has argued in the Save Jobs and Washtech cases, Congress never delegated to the Department of Homeland Security the power to grant aliens work authorizations at will. Even if Congress had done so, such a broad delegation of power, having no standards to govern its exercise, would have been unconstitutional.

IRLI’s other brief, filed on behalf of IRLI as friend of the court, gives a broader view of the ways DACA is unlawful, including the absence of statutory authority for the program and its promulgation without notice and comment. IRLI also shows in this brief why the unlawfulness of the deferred-action and work-authorization components of DACA matters: the Court has to reach the issue of lawfulness to fulfill its duty to decide its own jurisdiction. If DACA is unlawful, the Court cannot reinstate it, and the plaintiffs’ claimed injuries cannot be redressed by their lawsuits – leaving all of the courts in these cases without jurisdiction.

“It is ridiculous that one President can begin a discretionary program, but a later President can’t exercise his own discretion to end it,” said Dale L. Wilcox, executive director and general counsel of IRLI. “And when the discretionary program is unlawful to begin with, saying it can’t be ended is especially absurd. We hope the Court, performing its duty to decide its own jurisdiction and that of the lower courts, at last puts an end to this massive exercise of illusory authority by a federal agency.”

The cases are DHS v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Batalla Vidal, Nos. 18-567, 18-588, 18-589 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]