SCOTUS Takes on Obama Immigration Executive Order; What's Next? Immigration Lawyer Kerry Bretz Explains

The U.S. Supreme Court recently decided to hear a challenge to President Obama’s immigration plan (see LBN’s January 20, 2016 report). The Court’s ruling will be the final word on the legality of the president’s immigration plan, and the case might also consider the limits of presidential authority to implement such programs without action by the Congress. Prominent immigration lawyer Kerry Bretz discusses the case and what it might mean in this interview by Mark Wahlstrom, CEO of Sequence Media Group.

Kerry Bretz

Kerry Bretz

By way of a brief background, President Obama announced in 2014 the creation of a program called Deferred Actions for Parents of Americans and Lawful Permanent Residents (DAPA). The program would have allowed as many as five million people who qualified to apply for work permits and prevent them from being deported. Soon after the program was announced, Texas and other states filed United States v. Texas in federal court challenging what the president had done, primarily urging an abuse of power. The district court issued a preliminary injunction against the program, and the Fifth Circuit upheld the injunction on appeal. The Supreme Court announced on January 19 that it would hear the case.

Bretz explains that President Obama decided to use his executive authority to offer deferred action status to a group of illegal immigrants. Previously, Obama had offered this status to childhood arrivals through his DACA program. The newer program, Deferred Action for Parents of Americans (DAPA), applies to parents of U.S. citizens and lawful permanent residents.

“Basically,” Bretz says, “deferred action is an administrative grace.” It gives U.S. Immigration and Customs Enforcement (ICE) the discretion to choose not to deport someone. President Obama’s order extends deferred action status to the group of people covered by DAPA. Bretz explains that all DAPA gives to the covered individuals is work authorization. “It’s not a right to avoid eventual deportation” or to become a citizen.

It’s just the size of this, I think, that brought such a reaction.

One of the things that makes this case of special importance is the discussion whether the president’s actions violate Article II, Section 3, of the Constitution requiring the president to “take Care that the Laws be faithfully executed.” The Supreme Court has requested that counsel brief this issue in the case. Bretz says that the Court’s request may mean nothing more than that it wants all issues raised in the original federal lawsuit to be considered. And, as Bretz points out, “there is a doctrine that says that if {the Supreme Court] can decide the case without getting to the constitutional issue,” they should decide the case on that basis. It is too soon to tell, Bretz points out, until oral argument and perhaps until the decision. “It may not mean anything.”

Bretz suggests that the question driving this case is whether the president “overstepped his boundaries” by offering deferred action to such a large group of people. “It’s just the size of this, I think, that brought such a reaction.” Bretz points out that the president announced priorities for removal about the same time he announced DACA and DAPA. There has been no challenge to those priorities, and those priorities avoid those eligible for DACA and DAPA.

Bretz says that, as a matter of practicality, the Supreme Court case won’t affect people who are protected by the published priorities. There are three priorities for removal. The first two require a criminal history of some sort. The third priority applies to people who came to the U.S. on or after 2014. “If you’re not in those three priorities, then you’re not a target for enforcement.” That won’t change, Bretz points out, no matter how the Supreme Court case turns out. The only difference would be the inability to get a work authorization if the Court rules against the president.

Bretz says that he has been a New York City resident all of his life. Over the years, he has seen many amazing immigrant communities develop with their own economies and with small businesses that create jobs. These immigrants often take on jobs that many native-born Americans will no longer do. Bretz says it’s a misconception that these immigrants are hurting the economy. Most of them are hard- working, family people.

Bretz says that a ruling by the Court in favor of President Obama would mean that a group of people would be able to apply for work authorizations. For someone who is here and who is trying to get a driver’s license or open a bank account, the work authorization would be very helpful.

Kerry Bretz is a former INS trial attorney and partner at Bretz & Coven. His private practice is defined by his dedication to progressive, fair immigration laws that reflect the true value immigrants bring to the United States. He has played a major role in challenging the retroactive application of new immigration laws and mandatory detention. He was instrumental in winning major deportation cases, such as Henderson v INS and Calcano-Martinez v INS, which cases have changed the national scene on the availability of relief to aliens with criminal convictions. The Legal Broadcast Network is a featured network of Sequence Media Group.