- The Washington Times - Friday, December 4, 2015

Congressional Democrats filed an extraordinary brief with the Supreme Court late Thursday urging the justices to overturn a lower court ruling and reinstate President Obama executive amnesty, arguing that the executive branch has a better handle on immigration than Capitol Hill.

Led by House Minority Leader Nancy Pelosi and Senate Minority Leader Harry Reid, the 218 Democrats said Congress intended for Mr. Obama to have sweeping powers to grant proactive stays of deportation, work permits and Social Security numbers to the more than 11 million illegal immigrants estimated to be in the country.

“The patterns of immigration are subject to swiftly changing circumstances, and the executive is better situated to respond promptly to those changes and to redirect resources as necessary,” the 218 Democrats said in a brief filed by Ken Salazar, a lawyer who previously served as both a senator and in the executive branch as a member of President Obama’s Cabinet.

The Constitution gives Congress powers over immigration in Article I, Section 8, Clause 4, but Congress has given the executive branch some leeway in deciding how to enforce its laws. Democrats are arguing that leeway extends to halting most deportations and carving out millions of illegal immigrants who not only won’t be deported, but will be given benefits and privileges that allow them to remain in the U.S. and make a living — albeit it on tentative status.

Mr. Obama announced his amnesty in late 2014, saying he was acting to change the law on his own because Congress had refused to pass the bill he wanted.

Texas led 26 states in suing, arguing that they would bear costs of the amnesty, including having to issue driver’s licenses. A federal district court, and then an appeals court, have both sided with Texas and halted the broad amnesty before it took effect.

The Justice Department has asked the Supreme Court to take the case and is trying to speed it along for consideration this year, hoping to get the injunction lifted by the summer so Mr. Obama can begin to implement the amnesty for at least a few months before he leaves office.

The case is shaping up as perhaps the biggest test of Mr. Obama’s expansive claims of executive power. The appeals court ruled last month that he was breaking immigration laws written by Congress, and even said Mr. Obama seemed to misunderstand the legislative process when he told audiences he’d acted to “change the law” on his own — a power that’s reserved for the Congress.

The White House says Mr. Obama was speaking informally when he said he was changing the law, and says he’s only broadened powers of “deferred action” that previous presidents, including President Reagan and President George H.W. Bush, used.

Democrats defended the president in their new brief, saying it has only given the executive branch money to deport no more than 4 percent of illegal immigrants each year, so it makes sense the executive branch must pick and choose whom to deport.

The appeals court said Mr. Obama went beyond that by granting an affirmative stay of deportation into the future, and applying it to a major class of people — between 4 million and 5 million illegal immigrants who either came to the U.S. as young children, or who are illegal immigrant parents of American citizens or legal permanent residents.

“The court of appeals’ decision undermines Congress’s ability to place critical responsibility in the hands of an agency with the necessary expertise and capabilities,” the Democrats said.

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