"President Obama's "Deferred Action" Program for Illegal Aliens Is Plainly Unconstitutional" ( But McCarron just loves it!)
In 2010 Congress declined to enact the DREAM Act, which would have bestowed lawful resident status on illegal aliens who had arrived in this country as minors.1 In September 2011, when pressured by illegal alien advocates to implement the DREAM Act "on his own," President Obama responded: "I just have to continue to say this notion that somehow I can just change the laws unilaterally is just not true."2 In June 2012, the president did what nine months before he had insisted he could not do, unilaterally instituting the Deferred Action for Childhood Arrivals program ("DACA"), under which illegal alien "Dreamers" can request a two-year deferral of any action to remove them, along with employment authorization documents.3 To date, over 600,000 illegal aliens have been accepted into the program.
As explained in this report, (1) the president's deferred-action program involves three separate legal steps, (2) each of the three steps is plainly illegal, and (3) the three steps, taken together, amount to an unconstitutional usurpation of Congress's exclusive constitutional authority to formulate immigration policy.
Based on the statutes, legislative history, case law, and analysis presented above, I conclude that each of the three assertions of legal authority needed to implement President Obama's "deferred action" program for some four million illegal aliens plainly violates our statutory immigration laws. The deferral of removal is based on spurious claims, clearly exceeds the bounds of prosecutorial discretion, and directly violates a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996; grants of advance parole also directly violate a provision of the 1996 Act; and granting employment authorization to millions of illegal aliens directly contradicts numerous court decisions holding that the Executive Branch may not under color of its power to administer the immigration laws circumvent the statutory limits on the number of aliens allowed to compete in the U.S. labor market. Taken together, the three illegal steps amount to a usurpation of Congress's exclusive constitutional authority to formulate immigration policy.