In August of 2012, ten ICE agents sued DHS officials over the implementation of the Deferred Action for Childhood Arrivals (“DACA”) and aspects of the June 17, 2011 Morton memo (“Memo”) regarding prosecutorial discretion. Specifically, the ICE agents argued that DACA and the Memo are unconstitutional because Congress, by federal statute, requires the agents to place aliens who are not “clearly and beyond a doubt entitled to be admitted” to the United States into removal proceedings. 8 U.S.C. § 1225. However, DACA and the Memo prohibit the agents from complying with this statute for aliens who meet the DACA criteria.
On July 31, 2013, Judge O’Connor of the Northern District of Texas dismissed the case of Crane v. Napolitano on a jurisdictional issue. In doing so, the Court for the second time found that the challenged Obama Administration policies are unconstitutional. “[T]he Court finds that Plaintiffs are likely to succeed on the merits of their claim challenging the Directive and Morton Memorandum as contrary to the provisions of the Immigration and Nationality Act…” July 31 Op. p. 6. In April, the Court made the same finding. “[T]he Court finds that DHS does not have discretion to refuse to initiate removal proceedings when the requirements of Section 1225(b)(2)(A) are satisfied.” See April 4, 2013 Op. p. 24.
After these two opinions finding the DACA program unconstitutional, why has the President not rescinded the program? The President has a constitutional duty to “take Care that the Laws be faithfully executed…” Art. II, Sec. 3. After the April ruling, one would have thought that the Obama Administration would have followed its duty, and rescinded the policy. Instead, the Administration proceeded to argue that the Court did not have the authority to hear the case, and thus the Court lacked the authority to stop the Administration from continuing its policy—despite its unconstitutional nature. Specifically, the Obama Administration argued that the Civil Service Reform Act (“CRSA”), established by Congress to quickly resolve employment disputes with federal employees, strips the court of jurisdiction.
In his most recent rule, Judge O’Connor agreed with the Obama Administration on the CSRA jurisdictional issue, finding that the Court lacked jurisdiction to stop the Administration’s unconstitutional policy. While it is somewhat ironic that the administration cited federal statute to bar a court from enjoining a policy that the Court found to violate other federal statutes, the fact that the Court found it lacked jurisdiction to enjoin the policy does not change the fact that the policy itself is unconstitutional. Yet, the policy remains in place. Presumably, this administration is taking the approach that absent an injunction by a Court with jurisdiction, any policy it implements, no matter its lack of constitutionality, will continue. But, that is not what the Constitution requires of the President. After being told twice that its policy is unconstitutional, the President should acknowledge his constitutional duty to “take Care that the Laws be faithfully executed,” and rescind the policy.