Immigration Order Fought by 18 Red States

      (CN) – Eighteen Republican-controlled states sued the Obama administration Wednesday, claiming the president exceeded his constitutional powers by directing the immigration service to suspend deportation of an estimated 4 million longtime undocumented residents.
     The lawsuit in Brownsville, Texas Federal Court also blames the Obama for causing an “immigration crisis.”
     President Obama’s proposed “deferred action program” would offer temporary relief to some people who have lived for years without papers in the United States, without getting into trouble. It requires them to turn themselves in to immigration authorities, pay fees, and does not guarantee that by doing so they will not be protected from deportation should the program lapse.
     Lead plaintiff Texas sued Homeland Security Secretary Jeh Johnson and top officials of U.S. Customs and Border Protection, Immigration and Customs Enforcement and the U.S. Citizenship and Immigration Services.
     The states claim that the administration violated the “take care clause” of the Constitution – that the president must “take care that the laws be faithfully executed” (Article II, § 3, clause 5) – and two sections of the Administrative Procedures Act.
     In the lawsuit, the states object to President Obama’s Nov. 14 announcement “that he would unilaterally suspend the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States.”
     The lawsuit continues: “The president candidly admitted that, in so doing, he unilaterally rewrote the law: ‘What you’re not paying attention to is, I just took an action to change the law.’
     “In accordance with the president’s unilateral exercise of lawmaking, his Secretary of the Department of Homeland Security (‘DHS’) issued a directive that purports to legalize the presence of approximately 40% of the known undocumented-immigrant population, and affords them legal rights and benefits.
     “That unilateral suspension of the nation’s immigration laws is unlawful. Only this court’s immediate intervention can protect the plaintiffs from dramatic and irreparable injuries.” (Citations omitted.)
     Attached as exhibits to the 30-page complaint are 45 additional pages of exhibits – three memos from the Department of Homeland Security, from Nov. 19 and 20 this year and June 15, 2012.
     In the lawsuit, the Republican states launch a wide-ranging attack upon the Obama administration’s policies, including the so-called DREAM Act, which suspended deportation for some people whose parents brought them here as children, then lived without breaking the laws for years.
     The states also claim that the administration “adopted a policy that encouraged international child smuggling across the Texas-Mexico border;” and that it caused “a humanitarian crisis” by its protection of people who arrived as undocumented children.
     As for specific harm to the plaintiffs, Texas claims that it has spent more than $40 million in “law enforcement costs” on the border, including $38 million after Gov. Rick Perry “deployed 1,000 National Guard troops to the border.”
     “This crisis was caused by the immigration policies of the federal government,” the complaint states.
     (According to Border Patrol statistics, undocumented immigration to the United States is at a 35-year low, with an average of 429,046 arrests a year for the 5-year period from 2009 to 2013 – down from 1.3 million a year in 1999-2003, 1.4 million a year in 1994-98, and 1.2 million a year from 1984-93. The 5-year average from 1979 to 1983 was 879,806. This may be an effect of the quadrupling of Border Patrol employment over that time. The last time that yearly immigration arrests were so low was in 1969-73, when they averaged 396,495 a year.)
     The Republicans’ lawsuit zeroes in on the increased apprehensions of undocumented children.
     “On average, only 1,600 unaccompanied children are removed each year; in 2013, there were over 20,000 detentions of unaccompanied children from Guatemala, Honduras, and El Salvador, but only 496 unaccompanied children from those countries were repatriated,” the complaint states. “And the total number of undocumented children deported by the Obama Administration in 2013 was only 1,669 – an 80 percent reduction from 2008.” (Citations omitted.)
     The suing states claim in the lawsuit that this increased flow of children, some of them unaccompanied by adults, is “motivated primarily by the belief that they will not be deported.”
     (Many human rights groups attribute the increased immigration of children to drug wars between cartels and police forces in Mexico that have killed more than 100,000 people in recent years, and to similar wars between cartels and police forces in Honduras and El Salvador. In El Salvador, the increasing violence between street gangs and police forces is often attributed to young Salvadorans who joined street gangs in Los Angeles and other U.S. cities, then were deported and brought what they had learned back to El Salvador.
     (Increased imprisonments of undocumented children also have been attributed to the massive increase of private prisons in the United States. The first U.S. immigration built for the specific purpose of incarcerating children and mothers opened in Laredo, Texas, in 1985, on a private contract with the Corrections Corporation of America. Today, dozens of private prison companies and volunteer organizations incarcerate undocumented children for the United States.)
     Perhaps the most interesting aspects of the lawsuit, for legal scholars, will be the three documents attached as exhibits.
     They are:
     – a Nov. 20, 2014 letter on DHS letterhead from DHS Secretary Johnson to the heads of ICE and the Border Patrol, titled: “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents”;
     – a Nov. 19, 2014 “Memorandum Opinion for the Secretary of Homeland Security and the Counsel to the President” on “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others”;
     – and a June 15, 2012 memo from the acting Border Patrol chief to the Secretary of Homeland Security, on “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.”
     The Republican states ask the court to enjoin the proposed “deferred action program” as unconstitutional and procedurally unlawful.
     The states are represented by their attorneys general.

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