Obama’s immigration actions

Senate GOP files Supreme Court brief against Obama’s immigration actions

By Seung Min Kim

Senate Republicans are wading into the contentious court fight over President Barack Obama’s executive actions on immigration by filing a legal brief with the Supreme Court that declares Obama’s controversial moves a “stark contravention to federal law.”

The amicus brief is a significant assertion from most members of the Senate GOP conference that Obama’s executive actions — whose future depends on the eight justices now sitting on the Supreme Court — should be ruled unconstitutional.

The key point from the nearly four dozen GOP senators who signed the brief is that Obama, through his immigration programs, is essentially making law from the White House, threatening the separation of powers laid out by the Constitution.

“There is little doubt that [Obama] adopted the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program as part of an explicit effort to circumvent the legislative process,” the Republicans’ friend-of-the-court brief, to be released later Monday, says.

The Republican-led House of Representatives voted last month on a resolution that green-lights an amicus brief arguing against the Obama administration. Lawyers for the House also on Monday filed their brief, which argues that "neither any immigration law now on the books nor the Constitution empowers [Obama] to authorize—let alone facilitate—the prospective violation of those laws on a massive class-wide scale.”

Majority Leader Mitch McConnell (R-Ky.)

The legal push in the Senate was spearheaded by Majority Leader Mitch McConnell (R-Ky.), who circulated a Dear Colleague letter last month that urged fellow Republicans to sign on. In the letter, he called Obama’s actions a “brazen challenge” to Congress’s law-making powers.

“Not only is the President’s blatant refusal to follow those laws an extraordinary and virtually unprecedented power grab, it is a direct attack on our constitutional order,” McConnell wrote in the Dear Colleague letter, obtained by POLITICO. “The Senate has a duty to ensure that the President faithfully enforces the laws that Congress enacts.”

McConnell also argues that Obama’s executive actions are “unprecedented” in their scope. The prime argument from Democrats has been that presidents dating back to Dwight Eisenhower have taken some form of so-called “deferred action” to protect immigrants from being deported. But McConnell argues that the latest actions, announced in November 2014 but on hold since due to a federal court order, are not comparable to actions from previous chief executives.

Of the 54-member Senate GOP Conference, 43 senators endorsed the brief. The 11 Republicans who did not sign appear to have disparate reasons for doing so. For instance, Sens. Kelly Ayotte of New Hampshire, Richard Burr of North Carolina, Mark Kirk of Illinois, Rob Portman of Ohio and Pat Toomey of Pennsylvania are all Republicans running for reelection in swing states, where endorsing the immigration brief could open them up to attack from Democrats hoping to capitalize on support from Latino voters.

Among others who did not sign the brief, Sen. Susan Collins of Maine and Lisa Murkowski of Alaska are among the more moderate members of the Republican conference, while Cory Gardner of Colorado and Dean Heller of Nevada represent Latino-heavy states. Arizona Sen. Jeff Flake, who also did not endorse the brief, is an ardent Republican advocate of immigration reform, though he has expressed concern with Obama’s unilateral actions. Sen. Joni Ernst of Iowa also did not sign on.

Oral arguments in the high-stakes case will be held at the Supreme Court on April 18. The legal case against Obama’s actions was triggered by a lawsuit led by the state of Texas and now joined by more than two dozen GOP-led states. If allowed to go through, the programs would give work permits to potentially more than four million immigrants here illegally but who came to the United States as children or are parents to U.S. citizens or permanent residents.

More than 200 Democratic lawmakers from both the House and Senate have submitted multiple amicus briefs backing Obama’s actions.