The U.S. House of Representatives will vote on a resolution to file a “Friend of the Court Amicus” with the Supreme Court. If filed, it will be the first, ever, for the House. The resolution vote comes after SCOTUS asked parties on both sides to “argue,” whether Barack Obama “is faithfully executing the law” by establishing DAPA (Deferred Action for Parental Accountability). An additional question, never before asked by SCOTUS: Does DAPA violate the “Take Care Clause” of the Constitution which directs a president to “faithfully execute” law?
In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. However, with pens-and-phones replacing checks-and-balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers. Source: National Review
… First, Obama and Johnson [DHS Secretary Jeh Johnson] cannot simply will into existence new federal programs at any time they choose. Congress, in the Administrative Procedures Act (APA), required federal agencies to use what is called notice-and-comment rule-making when they promulgate new substantive rules.
Put another way, the executive branch can’t announce new programs of its own devising without first asking the American public for comment and then responding to those comments. Johnson did not utilize notice-and-comment rule-making before creating DAPA, so his memo directing DHS to create DAPA violates the law.
Second, the states also have a substantive APA claim. This argument, which persuaded the Fifth Circuit Court of Appeals, is that Congress never authorized DHS to create DAPA in the first place. So, whether DAPA requires notice-and-comment or not, DHS cannot create the program.
This too is indisputably true. The Immigration and Nationality Act (INA) creates several forms of immigration relief, including temporary statuses, and when it does, it does so by name. For example, asylum, adjustment of status, cancellation of removal, the visa provisions, waivers, and conditional statuses are all explicitly provided for in voluminous statutory text..
Does allowing illegals to remain in the country, receive work permits and receive some (maybe many) benefits, violate the president’s authority?
The Department of Justice asked SCOTUS to avoid the “constitutional question,” and of course, they would, but the Texas soliciter general asked the Court to consider if DAPA is contrary to law or the Constitution and a second question of DAPA violating the “Take Care Clause.” The Court has complied.
In a closed-door meeting, Ryan informed his House Republican colleagues of the decision to vote on filing an amicus brief inU.S. v. Texas, the 26-state lawsuit challenging Obama’s November 2014 executive actions on immigration. The high court agreed to hear the case in January and will decide whether
to uphold the injunction blocking the DAPA and expanded DACA amnesty programs until the case is litigated on the merits. The Court is expected to hear
arguments in April and issue a ruling in June – just months before the 2016 presidential election.
Ryan explained that an attempt to file an amicus brief on behalf of the entire chamber is an “extraordinary step” and something that “has never been done before.” Below are his full remarks on the impending vote:
“In the coming weeks, we will be taking our next step to stop the president’s executive overreach. The House will vote on whether to file an amicus brief in the Supreme Court opposing the president’s executive amnesty. This is a very extraordinary step. In fact, it has never been done before.
“But this executive amnesty is a direct attack on the Congress’s Article One powers under our Constitution. This is a question between Article One and Article Two.
“The president is not permitted to write law—only Congress is. The House will make that very, very clear, and we will do so as an institution on behalf of the American people on behalf of representative self-government.” Source: Immigration Reform
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