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  • Article: State of Texas Files Brief in United States v. Texas. By Kevin R. Johnson

    State of Texas Files Brief in United States v. Texas


    Yesterday, Texas Attorney General Ken Paxton filed a merits brief with the U.S. Supreme Court in United States v. Texas.  Texas led a coalition representing 26 states in challenging President Obama's expanded deferred action program announced in November 2014.                                                                                                         

    “The Obama Administration has consistently demonstrated disregard for the rule of law in asserting that it has the legal authority to unilaterally change the immigration policy of the United States,” said Attorney General Paxton. “Rewriting national immigration law requires the full and careful consideration of Congress, not the political will and assertion of one person. As the president himself said numerous times, he alone does not have the authority to grant millions of unauthorized aliens a host of benefits, including work authorization.” 

    Joining Texas in the lawsuit are: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin.

     Click here to view the brief.  Here is the introduction to the brief:

    "The Executive Branch unilaterally created a program—known as DAPA—that contravenes Congress’s complex statutory framework for determining when an alien may lawfully enter, remain in, and work in the country. DAPA would deem over four million unlawfully present aliens as “lawfully present” and eligible for work authorization. Pet. App. 413a. And “lawful presence” is an immigration classification established by Congress that is necessary for valuable benefits, such as Medicare and Social Security.

    The Executive does not dispute that DAPA would be one of the largest changes in immigration policy in our Nation’s history. The President himself described DAPA as “an action to change the law.” Pet. App. 384a. Yet the Executive claims it may effect this change without even conventional notice-and-comment procedure.

    Far from interfering with the Executive’s removal discretion, the preliminary injunction of DAPA does not require the Executive to remove any alien. And this lawsuit has never challenged the Executive’s separate memorandum establishing three categories of aliens prioritized for removal. Pet. App. 420a-29a.  This case is about an unprecedented, sweeping assertion of Executive power.

    This case is not about the wisdom of particular immigration policies; legislators have disagreed on whether immigration statutes should be amended. But when Congress has established certain conduct as unlawful, the separation of powers does not permit the Executive to unilaterally declare that conduct lawful."

    This post originally appeared on Law Professor Blogs. © Copyright 2004-2016 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.

    About The Author

    Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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