Congresswoman Diana DeGette

Representing the First District of Colorado
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House Dems in Court Brief Defend Obama Immigration Orders

Apr 7, 2015
In The News

Colorado’s three Democratic members of Congress joined 178 of their colleagues in signing onto a court brief defending President Obama’s executive actions on immigration announced last November.  The president’s orders would have halted deportations of immigrants without documentation who were brought here as children or who are parents of U.S. citizen-family members, but the orders were suspended in February after Texas federal Judge Andrew Hanen ruled in favor of a lawsuit brought by Republican officials in 26 states. 

“I support the executive actions. I hope the court works this out as expeditiously as possible so that my constituents eligible for deferred action can have the peace of mind that their families will not be torn apart,” said 1st District Rep. Diana DeGette. She was joined by 2nd District Rep. Jared Polis and 7th District Rep. Ed Perlmutter. 

The Center for Immigration Studies estimates that more than 200,000 Colorado residents are living and working here without legal documentation.  Obama in November, frustrated by repeat failed efforts on Capitol Hill to reform the nation’s dysfunctional immigration laws, directed the Department of Homeland Security to prioritize deportations of undocumented immigrants who have criminal records and no family ties here. His order would provide temporary legal residency and three-year work permits to more than 4 million people.

Republicans, opposed to immigration reforms that do not prioritize security and enforcement, were enraged by the move, saying the president had overstepped his authority by by-passing Congress to, in effect, write his own laws.  The Republican filed the lawsuit heard by Judge Hanen is scheduled for an expedited hearing in the 5th Circuit federal appeals court on April 17. 
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n their brief, House Democrats argue that the presidency has always had the power to decide how best to enforce laws written by Congress. They point out that there are more than 11 million undocumented immigrants living in the United States by most estimates and that effective enforcement of the nation’s immigration laws requires determining which groups of immigrants to target for deportation and which immigrants to provide with relief. As things stand, the policy on the ground is random, unpredictable, disorganized.  “Congress has vested the Secretary of Homeland Security with broad discretion to determine how best to implement the immigration laws, including the particular decisions embodied in [Obama’s] Deferred Action Memorandum,” reads the brief.

The signers argue that, as representatives of diverse communities, they ” have witnessed how an approach to enforcement of the immigration laws that does not focus on appropriate priorities, such as felons or national security threats, undermines confidence in the Nation’s immigration laws, wastes resources, and needlessly divides families.” 

A release on the brief summarized its main points:

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 repeatedly 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 for implementing 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 one guideline that Congress has repeatedly imposed in recent years is that the Secretary should prioritize the identification and removal of people convicted of crimes based upon the severity of those crimes.
Courts have long recognized that Congress left it up to the Executive to determine how best to implement the immigration laws.

– When the Fifth Circuit rejected a similar challenge brought by the State of Texas to the Federal government’s immigration enforcement efforts, the court recognized that our immigration laws “commit[…] enforcement of the INA to [the Secretary’s] discretion.”

–   Just three years ago, the Supreme Court explained that the “broad discretion exercised by immigration officials,” including “whether it makes sense to pursue removal at all,” is “[a] principal feature of the removal system.”

–   The deferred action programs are a rational and effective way to prioritize enforcement and carry out the will of Congress.

The issuance of the memorandum is unreviewable under the Administrative Procedures Act and fulfills the Executive’s constitutional duty to faithfully execute the law.  And even if it were reviewable under the APA, the issuance of the memorandum would not trigger the APA’s notice-and-comment requirements.
Undocumented immigrants make up more than 5 percent of the U.S. workforce, according to the Pew Research Center. In 2012, there were 8.1 million unauthorized immigrants either working or looking for work. Roughly 7 percent of K-12 students lived in homes headed by at least one unauthorized immigrant parent.

Among these students, about eight-in-ten were born in the United States.