WHERE IS OUR AG? DACA A CLEAR VIOLATION OF FEDERAL LAW AND THE CONSTITUTION
Where is Attorney General Brnovich? They are breaking the law and costing Arizona taxpayers millions of dollars. DACA is in violation of the law, the Constitution, plus Arizona law.
10 states have given the feds a deadline to the Executive to overturn the illegal Amnesty ordered by the corrupt Obama administration or be sued. Arizona said NO to DACA overwhelmingly. In 2006 Arizona’s Prop. 300 passed by 73% of voters a majority of every single demographic, including Hispanics. Yet our Arizona Attorney General Brnovich did not join the law suit to over-turn the illegal executive order by the corrupt Obama administration on giving Amnesty to DACA individuals many of whom came to the US on their own and many of them violent gang members and allowing them to get benefits, including in-state tuition not even offered to U.S. students.
I believe the law is clear. According to Kris Kobach, as a legal question, it’s not even close. DACA is not illegal for just one reason. It’s illegal for at least five reasons – three violations of federal law and two violations of the United States Constitution: a
Federal law violations: According to Kris Kobach and I certainly agree:
1. 8 USC 1225(b)(2). This statute requires that any alien an ICE officer determines to be inadmissible “shall” be placed in removal proceedings. Congress passed this law in 1996 to stop the “catch and release” policies of the Clinton Administration. Incredibly, DACA orders ICE agents to break this law. In 2012, in the case of Crane v. Napolitano, I represented 10 ICE agents who sued the Obama Administration to stop DACA. Although the Fifth Circuit Court of Appeals eventually ruled that the ICE agents didn’t have standing, the district court in the Northern District of Texas had already held that we were likely to succeed on this claim.
2. The Administrative Procedure Act (APA). Even if there weren’t a statutory barrier to a president issuing the DACA directive, the Department of Homeland Security would still have to promulgate a formal regulation (or “rule”), with notice and public comment, under the requirements of the APA. The Obama Administration violated this federal law as well when it created DACA. The Fifth Circuit already came to this conclusion in Texas v. United States, a case which resulted in an injunction halting the second Obama executive amnesty (which was based on the same theory as DACA).
3. “Prosecutorial discretion” cannot be used to confer federal benefits. Prosecutorial discretion is a decision not to prosecute; it is not a legally-permissible mechanism for granting lawful presence or the valuable benefit of employment authorization. Federal law lays out the only avenues for obtaining either. And DACA doesn’t follow those avenues. The Fifth Circuit reached this conclusion as well in Texas v. United States.
United States Constitution violations:
1. The Constitutional Separation of Powers. The granting of the right to remain in the United States, plus employment authorization, to a large number of aliens is a legislative action, not an executive action. The “DREAM Act” legislative amnesty, which DACA mimics, has been introduced and has failed in Congress more than twenty times since 2001. If someday Congress decides to enact the DREAM Act, Congress may do so. But a president may not usurp Congress’s authority, as President Obama did, by imposing the DACA amnesty on the country through executive fiat.
2. Article 2, section 3, of the U.S. Constitution. This section of the Constitution requires the president to “take care that the laws be faithfully executed.” The DACA amnesty is an express order not to execute the multiple federal laws that render these aliens unlawfully present. An order not to enforce the law against 1.7 million specially-designated aliens is a clear violation of this constitutional provision.
PLUS … ARIZONA LAW: PASSED BY 73% OF ARIZONA VOTERS IN 2006.
ARS 15-1803. Alien in state student status
B. In accordance with the illegal immigration reform and immigrant responsibility act of 1996 (P.L. 104-208; 110 stat. 3009), Sec. 4. Title 15, chapter 14, article 2, Arizona Revised Statutes, is amended by adding section:
15-1825. Prohibited financial assistance; report
A. A person who is not a citizen of the United States, who is without lawful immigration status and who is enrolled as a student at any university under the jurisdiction of the Arizona board of regents or at any community college under the jurisdiction of a community college district in this state is not entitled to tuition waivers, fee waivers, grants, scholarship assistance, financial aid, tuition assistance or any other type of financial assistance that is subsidized or paid in whole or in part with state monies.
C. This section shall be enforced without regard to race, religion, gender, ethnicity or national origin.
I agree with Kris Kobach who I used as a legal advisor when I wrote SB1070. “Any single one of these legal claims is sufficient to torpedo DACA in court. And three have already been given credence by the courts. Attorney General Sessions knows this. As he correctly told the Senate Judiciary Committee in January, DACA is “very questionable, in my opinion, constitutionally.” He is undoubtedly reluctant to defend this blatantly illegal executive amnesty.
The Department of Justice can’t win the case. The Fifth Circuit has already ruled on the central legal question, and that is where the case would be heard. The Trump Administration would lose in court, and the president would lose a significant section of his political base as well. DACA is inconsistent with the rule of law, inconsistent with the president’s own promises, and inconsistent with the president’s principled stand against illegal immigration. It must end.”