IRLI urges faster recognition of program’s illegality
WASHINGTON – Yet another appellate court – this time, the Fourth Circuit Court of Appeals – has enjoined the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program. In support of the government’s petition for review of this decision in the Supreme Court, the Immigration Reform Law Institute (IRLI) today filed a friend-of-the-court brief urging the Court to take the case in order to rule that the courts lack jurisdiction to hear it – because DACA is flagrantly unlawful.
DACA is unlawful, IRLI shows, because Congress never delegated authority for it to the Department of Homeland Security (DHS). This is especially so when it comes to the work authorizations DACA beneficiaries receive. If the law is read broadly enough to allow DHS to give out these work authorizations, then Congress has delegated sweeping power to DHS to authorize any alien it wants to work, without needing to comply with any statutory standard at all. But in that case, Congress has delegated authority that it cannot delegate under the Constitution. And, where possible, courts are to avoiding reading statutes in a way that makes them unconstitutional. Here, that can only be done by not reading the law broadly enough to allow the work authorizations in DACA.
Because DACA is unlawful, stopping the rescission of DACA, as the Fourth Circuit did, should not restore DACA. Rather, it should restore the last lawful regulatory state of affairs – here, the regulations in place before DACA. Since that result does not help the plaintiffs at all, their injuries cannot be redressed by this lawsuit, and the courts lack jurisdiction to hear the case.
“It boggles the mind 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. “But when the discretionary program is unlawful to begin with, saying it can’t be ended is especially absurd. We hope the Court takes up this case, performs its duty to determine its own jurisdiction and that of the lower courts, and at last puts an end to this massive exercise of illusory power by a federal agency.”
The case is DHS v. Casa de Maryland, No. 18-1469 (Supreme Court).
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