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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Wednesday, January 20, 2016

In Immigration Case, Supreme Court Takes an Interest in ‘Take Care’ Clause

Wall Street Journal
By Joe Palazzolo
January 19, 2016

When the U.S. Supreme Court considers the legality of President Barack Obama‘s plan to allow millions of illegal immigrants to remain in U.S. and obtain work permits, it will also weigh the meaning and purpose of a constitutional clause with a funny name that few courts have interpreted.

The president’s duty to “take Care that the Laws be faithfully executed” appears in Article II, Section 3 of the U.S. Constitution. It is known as the Take Care Clause.

The lawsuit before the high court was filed by Texas and 25 other largely Republican-led states and seeks to block President Obama’s immigration program, known as the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. The states say the program flies in the face of the Take Care Clause.

The lawsuit also points to alleged violations of the Administrative Procedure Act, a federal law that governs the process by which administrative agencies propose and establish regulations.

Neither the Supreme Court nor the lower federal courts have addressed the bounds of the Take Care Clause squarely, the Justice Department’s Office of Legal Counsel noted in a memo blessing the legality of Mr. Obama’s immigration program.

In February, a federal district judge blocked the DAPA program for the duration of the lawsuit, finding that the states were likely to win on one of their claims under the Administrative Procedure Act. The Obama administration appealed to the Fifth U.S. Circuit Court of Appeals, lost and then petitioned the U.S. Supreme Court for review. The Fifth Circuit declined to consider the constitutional issue.

On Tuesday, the U.S. Supreme Court specifically asked for legal briefs and arguments on whether the president’s plan violates the Take Care Clause.

DAPA would give temporary reprieve to illegal immigrants whose children hold U.S. citizenship or permanent residency.  The plan sought to prioritize removal of serious criminals while allowing parents of children to work without fear of deportation.

The U.S. Supreme Court, in considering whether the president enjoys such powers, could draw a new line between executive discretion and congressional authority.

There is no guarantee that the high court will break new ground. Even after briefing and arguments, the justices may decline to delve into the constitutional issues.

“On the one hand, the Constitution obligates the President to ‘take Care that the Laws be faithfully executed,” wrote  Zachary Price, a professor at U.C. Hastings College of Law, in a 2014 law review article on enforcement discretion. “On the other hand, the very separation of executive and legislative powers under our constitutional scheme…implies that the President is more than a congressional handmaiden.”

According to Mr. Price, broad presidential discretion to exempt entire categories of offenders from prosecution “would collide with another deeply rooted constitutional tradition: the principle that American Presidents, unlike English kings, lack authority to suspend statutes or grant dispensations that prospectively excuse legal violations.”

The Justice Department concluded that President Obama’s policy was within his executive discretion because it provides a general framework for examining individual cases, rather than a categorical ban on enforcing certain types of cases. The agency also also pointed to the need to prioritize scarce enforcement resources.

Saikrishna Prakash, a law professor at University of Virginia, used an analogy to describe the issues facing the court.

Highway patrol officers can’t possibly pull over every vehicle that breaks the speed limit. If they decided, informally, to stop only those driving more than 10 miles over the speed limit, no one would question their discretion to do so, he said.

The DAPA program is akin to the highway patrol putting its speed cutoff in writing, Mr. Prakash said. “And that raises people’s hackles, in part, because it seems like [President Obama] is giving them a license to speed,” he said.

But unless Congress were to provide enough funding for the administration to deport every illegal immigrant, it must grant some discretion to the president in how he uses the limited resources he’s given, Mr. Prakash said.

Mr. Price said in an interview with Law Blog that courts have been “reluctant to police the limits of prosecutorial or enforcement discretion,” because they view it as a core executive responsibility. And courts tend to see themselves as poorly suited to second-guessing administrative priorities, he said.

For more information, go to:  www.beverlyhillsimmigrationlaw.com

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