This week, the US Supreme Court agreed to hear the challenge to President Obama’s Immigration Executive Action regarding the exercise “prosecutorial discretion” for certain undocumented parents of US citizen children.  The program was announced in November 2014 and enjoined before it was implemented.  The injunction that was affirmed by the United States Court of Appeals for the 5th Circuit was as a result of an action brought by a coalition of 26 states.  The program at issue, known as DAPA, is intended to allow several million people to be spared from removal from the US because of their being low priority, low risk undocumented aliens whose only offense is being out or status or having entered the US without inspection.   

The case has significant Constitutional implications as the Supreme Court directed the parties to address the “take care clause” of the Constitution.

 Set forth in Article 2, Section 3, Clause 5 of the United States Constitution is a clause which states that the President of the United States must “take care that the laws be faithfully executed”.  This means that the laws must be “faithfully executed” by the President, even if he disagrees with the purpose of the law.  As the clause relates to Deferred Action for Parents of Citizens (DAPA), it is a fascinating constitutional question of the balance of power of the 3 branches of government. The decision could redefine the limits of all Executive Action undertaken by a US President, not just in regard to immigration.

 For the millions of parents of US citizens who are undocumented, who fear removal and family separation and have been waiting for some relief, the answer to the question is not esoteric or scholarly or theoretical, it’s their lives. Millions of parents of US citizens whose only legal violation is being undocumented…not being criminals or terrorists or rapists or…only being the folks next door…the importance of the President’s exercise of prosecutorial discretion so that they can be lawfully present can’t be over stated.

 In 1986, Congress acted to address the millions of undocumented in the US by passing the Immigration Reform and Control Act (IRCA).  Those who qualified for amnesty under IRCA were on the road to citizenship.  Those who would benefit from DAPA are not on the road to citizenship, only lawful presence.  Before signing IRCA into law, President Ronald Reagan said:  ”I believe in the idea of amnesty for those who put down roots and lived here, even though some time back they entered illegally…”  I couldn’t say it any better than that.