Posted on 12/19/2014 5:46:39 AM PST by SeekAndFind
The U.S. Justice Department and the Obama administration have lost their first battle in the war over the presidents plan to provide deferred action, or amnesty, to almost 5 million illegal aliens.
When the judge for a Pennsylvania federal district court held on December 16 that President Obamas Executive Action is unconstitutional because it violates the separation of powers and the Take Care Clause of the Constitution, it must have felt like it came from left field, since the case didnt involve a general attack on the immigration amnesty plan. No, U.S. v. Elionardo Juarez-Escobar is a criminal prosecution of a Honduran who had already pled guilty in a case involving reentry of a removed alien in violation of 8 U.S.C. §1326.
Juarez-Escobar had been deported from the U.S. in 2005, but, like many illegal aliens, he reentered the U.S. He went to work for his brothers landscaping business in Pittsburgh and was arrested in April in New Sewickley Township, Pa., for DUI and corrupting a minor who was in the car when he failed field sobriety tests with a 0.18 percent blood-alcohol level.
Juarez-Escobar was picked up by federal authorities after DHS was notified of his arrest through the Secure Communities program, which, as Judge Arthur Schwab points out, is being terminated by the presidents Executive Action on immigration.
Before Juarez-Escobar could be sentenced, President Obama announced his new immigration policy, on November 20. As a result, Judge Schwab ordered the Justice Department to explain whether the presidents executive action applied to this defendant and whether there were any other constitutional and/or statutory considerations relevant to Juarez-Escobars prosecution. DOJ filed only a four-page response claiming that the new amnesty policy applied only to civil immigration enforcement, not criminal proceedings. Judge Schwab issued his opinion shortly thereafter.
In essence, Judge Schwab found that what President Obama did crossed the line and constitutes legislation, effectively changing United States immigration policy. The president may only take Care that the Laws be faithfully executed . . . ; he may not take any Executive Action that creates laws. Schwab also dismissed the legal excuse provided by the Justice Department to justify the presidents action: prosecutorial discretion.
As Judge Schwab said, the presidents executive action goes far beyond prosecutorial discretion because
(a) it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and
(b) it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights.
The court also dismissed DOJs claim that the executive action does not impact criminal proceedings, and specifically this one against Elionardo Juarez-Escobar. According to Judge Schwab, civil deportation proceedings often arise after or as a result of the individual being convicted of a crime. The court could not ignore the fact that what happens here, in this criminal proceeding, significantly and determinatively impacts what happens there, in a civil proceeding.
Nevertheless, the judge didnt order the administration to quit implementing the presidents amnesty plan. It did give the defendant the option to withdraw his guilty plea in light of the Executive Action or to continue to the sentencing phase of this prosecution.
Texas is where the main action is. The 24 states that filed a lawsuit against the amnesty plan on December 3 (the 17 original states have been joined by another seven) and the specific Department of Homeland Security directive implementing it wasted no time in filing an advisory about the Pennsylvania decision with Judge Andrew S. Hanen of the Southern District of Texas (Brownsville Division) on December 16.
Judge Hanen, who has been assigned to the case, issued a searing indictment of the Obama administrations immigration policy a year ago, calling its behavior dangerous and unconscionable. He said that DHS should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws.
The advisory filed with Judge Hanen was almost gleeful in pointing out that Judge Schwab had agreed with the States constitutional arguments. The states also maintained that this decision further underscores the Plaintiff States likelihood of success on the merits.
This is an important point because, on December 4, the states followed up on their initial complaint by filing a motion for a preliminary injunction. They asked the court for an order stopping the Department of Homeland Security from implementing the presidents plan and the DHS directive.
They asked for a hearing by December 31 or as soon as practicable thereafter. Proving a likelihood of success on the merits is one of the factors required to obtain a preliminary injunction.
In the advisory, the states once again emphasized the importance of the preliminary-injunction request: Moreover, given that one federal court already has concluded that the DHS Directive is unconstitutional, Plaintiffs respectfully request that this Court preserve the status quo and the full panoply of remedial options by scheduling a preliminary injunction hearing and enjoining the Directive.
Finally, members of Congress have joined the fight. On December 16, three senators Ted Cruz (R., Texas), Roy Blunt (R., Mo.), and John Cornyn (R., Texas) along with 24 House members, including incoming representative Dave Brat (who replaced Eric Cantor in probably the biggest primary upset of the year) in his debut appearance, filed an amicus brief, through the American Center for Law and Justice, on behalf of the states and their request for a preliminary injunction.
The brief argues that President Obamas action and the DHS directive violate the Constitution and the comprehensive immigration scheme created by Congress: The DHS directive, at the admission of the President, changes the law and sets a new policy, exceeding Defendants constitutional authority and disrupting the delicate balance of powers.
So the war in the courts has been joined in earnest over President Obamas immigration amnesty plan. The president has lost the first fight in a minor skirmish in Pennsylvania, but the big battle is still to come in Texas. Judge Hanen has not yet set a date for a hearing on the preliminary injunction. Whether the Texas case will turn out to be President Obamas Waterloo, only time will tell.
Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation. Along with John Fund, he is the co-author of Whos Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obamas Enforcer: Eric Holders Justice Department.
Create enough chaos, and it all gets overwhelmed.
Do you know that there are Leftists who are actulayy syaing Cloward and Piven never write that? That it’s a right-wing hit piece?
There are people who can actually look you in the eyes, smile, and lie.
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Where can I see a copy of the "Immigration Accountability Executive Action" referred to above? is it in the federal register? I ran across the information below when I was searching google for information on Obama's memorandums. Thanks.
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The White House
Office of the Press Secretary
For Immediate Release
November 20, 2014
FACT SHEET: Immigration Accountability Executive Action
The Presidents Immigration Accountability Executive Actions will help secure the border, hold nearly 5 million undocumented immigrants accountable, and ensure that everyone plays by the same rules. Acting within his legal authority, the President is taking an important step to fix our broken immigration system.
These executive actions crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay their fair share of taxes as they register to temporarily stay in the U.S. without fear of deportation.
These are common sense steps, but only Congress can finish the job. As the President acts, hell continue to work with Congress on a comprehensive, bipartisan billlike the one passed by the Senate more than a year agothat can replace these actions and fix the whole system.
Three critical elements of the Presidents executive actions are:
Cracking Down on Illegal Immigration at the Border: The Presidents actions increase the chances that anyone attempting to cross the border illegally will be caught and sent back. Continuing the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer, the Presidents actions will also centralize border security command-and-control to continue to crack down on illegal immigration.
Deporting Felons, Not Families: The Presidents actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members, and recent border crossers at the top of the deportation priority list.
Accountability Criminal Background Checks and Taxes: The President is also acting to hold accountable those undocumented immigrants who have lived in the US for more than five years and are parents of U.S. citizens or Lawful Permanent Residents. By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair share of taxes and temporarily stay in the U.S. without fear of deportation for three years at a time.
The Presidents actions will also streamline legal immigration to boost our economy and will promote naturalization for those who qualify.
For more than a half century, every presidentDemocratic or Republicanhas used his legal authority to act on immigration. President Obama is now taking another commonsense step. As the Administration implements these executive actions, Congress should finish the job by passing a bill like the bipartisan Senate bill that: continues to strengthen border security by adding 20,000 more Border Patrol agents; cracks down on companies who hire undocumented workers; creates an earned path to citizenship for undocumented immigrants who pay a fine and taxes, pass a background check, learn English and go to the back of the line; and boosts our economy and keeps families together by cutting red tape to simplify our legal immigration process.
CRACKING DOWN ON ILLEGAL IMMIGRATION AT THE BORDER
Under the Obama Administration, the resources that the Department of Homeland Security (DHS) dedicates to security at the Southwest border are at an all-time high. Today, there are 3,000 additional Border Patrol agents along the Southwest Border and our border fencing, unmanned aircraft surveillance systems, and ground surveillance systems have more than doubled since 2008. Taken as a whole, the additional boots on the ground, technology, and resources provided in the last six years represent the most serious and sustained effort to secure our border in our Nations history, cutting illegal border crossings by more than half.
And this effort is producing results. From 1990 to 2007, the population of undocumented individuals in the United States grew from 3.5 million to 11 million people. Since then, the size of the undocumented population has stopped growing for the first time in decades. Border apprehensionsa key indicator of border security are at their lowest level since the 1970s. This past summer, the President and the entire Administration responded to the influx of unaccompanied children with an aggressive, coordinated Federal response focused on heightened deterrence, enhanced enforcement, stronger foreign cooperation, and greater capacity for Federal agencies to ensure that our border remains secure. As a result, the number of unaccompanied children attempting to cross the Southwest border has declined precipitously, and the Administration continues to focus its resources to prevent a similar situation from developing in the future.
To build on these efforts and to ensure that our limited enforcement resources are used effectively, the President has announced the following actions:
Shifting resources to the border and recent border crossers. Over the summer, DHS sent hundreds of Border Patrol agents and U.S. Immigration and Customs Enforcement (ICE) personnel to the Southwest border, and the Department of Justice (DOJ) reordered dockets in immigration courts to prioritize removal cases of recent border crossers. This continued focus will help keep our borders safe and secure. In addition, Secretary Johnson is announcing a new Southern Border and Approaches Campaign Plan which will strengthen the efforts of the agencies who work to keep our border secure. And by establishing clearer priorities for interior enforcement, DHS is increasing the likelihood that people attempting to cross the border illegally will be apprehended and sent back.
Streamlining the immigration court process. DOJ is announcing a package of immigration court reforms that will address the backlog of pending cases by working with DHS to more quickly adjudicate cases of individuals who meet new DHS-wide enforcement priorities and close cases of individuals who are low priorities. DOJ will also pursue regulations that adopt best practices for court systems to use limited court hearing time as efficiently as possible.
Protecting victims of crime and human trafficking as well as workers. The Department of Labor (DOL) is expanding and strengthening immigration options for victims of crimes (U visas) and trafficking (T visas) who cooperate in government investigations. An interagency working group will also explore ways to ensure that workers can avail themselves of their labor and employment rights without fear of retaliation.
DEPORTING FELONS, NOT FAMILIES
By setting priorities and focusing its enforcement resources, the Obama Administration has already increased the removal of criminals by more than 80%. These actions build on that strong record by:
Focusing on the removal of national security, border security, and public safety threats. To better focus on the priorities that matter, Secretary Johnson is issuing a new DHS-wide memorandum that makes clear that the governments enforcement activity should be focused on national security threats, serious criminals, and recent border crossers. DHS will direct all of its enforcement resources at pursuing these highest priorities for removal. Implementing a new Priority Enforcement Program.
Effectively identifying and removing criminals in state and local jails is a critical goal but it must be done in a way that sustains the communitys trust. To address concerns from Governors, Mayors, law enforcement and community leaders which have undermined cooperation with DHS, Secretary Johnson is replacing the existing Secure Communities program with a new Priority Enforcement Program (PEP) to remove those convicted of criminal offenses. DHS will continue to rely on biometric data to verify individuals who are enforcement priorities, and they will also work with DOJs Bureau of Prisons to identify and remove federal criminals serving time as soon as possible.
ACCOUNTABILITY CRIMINAL BACKGROUND CHECKS AND TAXES
Every Democratic and Republican president since Dwight Eisenhower has taken executive action on immigration. Consistent with this long history, DHS will expand the existing Deferred Action for Childhood Arrivals (DACA) program to include more immigrants who came to the U.S. as children. DHS will also create a new deferred action program for people who are parents of U.S. Citizens or Lawful Permanent Residents (LPRs) and have lived in the United States for five years or longer if they register, pass a background check and pay taxes.
The President is taking the following actions to hold accountable certain undocumented immigrants:
Creating a mechanism that requires certain undocumented immigrants to pass a background check to make sure that they start paying their fair share in taxes. In order to promote public safety, DHS is establishing a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than 5 years. Individuals will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement. By providing individuals with an opportunity to come out of the shadows and work legally, we will also help crack down on companies who hired undocumented workers, which undermines the wages of all workers, and ensure that individuals are playing by the rules and paying their fair share of taxes.
Expanding DACA to cover additional DREAMers. Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children, and met specific education and public safety criteria were eligible for temporary relief from deportation so long as they were born after 1981 and entered the country before June 15, 2007. DHS is expanding DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today. Going forward, DACA relief will also be granted for three years.
The Presidents actions will also streamline legal immigration to boost our economy and promote naturalization by:
Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses. Under the current system, employees with approved LPR applications often wait many years for their visa to become available. DHS will make regulatory changes to allow these workers to move or change jobs more easily. DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application.
Enhancing options for foreign entrepreneurs. DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., to ensure that our system encourages them to grow our economy. The criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act.
Strengthening and extending on-the-job training for STEM graduates of U.S universities. In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.
Streamlining the process for foreign workers and their employers, while protecting American workers. DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a companys foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected.
Reducing family separation for those waiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.
Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (parole).
Issuing a Presidential Memorandum on visa modernization. There are many ways in which our legal immigration system can be modernized to reduce government costs, eliminate redundant systems, reduce burdens on employers and families, and eliminate fraud. The President is issuing a Memorandum directing an interagency group to recommend areas for improvement.
Creating a White House Task Force on New Americans. The President is creating a White House Task Force on New Americans to create a federal strategy on immigrant integration.
Promoting Citizenship Public Awareness: DHS will launch a comprehensive citizenship awareness media campaign in the 10 states that are home to 75 percent of the overall LPR population. USCIS will also expand options for paying naturalization fees and explore additional measures to expand accessibility, including studying potential partial fee waiver for qualified individuals.
Ensuring U.S. Citizens Can Serve: To further our militarys needs and support recruitment efforts, DHS will expand an existing policy to provide relief to spouses and children of U.S. citizens seeking to enlist in the military, consistent with a request made by the Department of Defense.
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Making new law? It looks to me like Obama is making new immigration law above. I don't think that the U.S. Constitution authorizes Obama to make new immigration law.
The picture from White House archives, shows Cloward (light gray suit) and
Piven (green coat and navy dress) standing directly behind then-Pres Clinton
at the "Motor Voter" signing ceremony.
He was photoed on AF/One signing two memos.....
"memos" b/c E/Os have legal baggage.
The memos sound nice and certainly don't direct the executive or his agents to do anything unlawful.
JUST AS AN ASIDE .....experience tells us conniving conmen don't put their real plans in writing.
Immediately after the U.S. v. Elionardo Juarez-Escobar finding the democrats and the media started trashing and discrediting Judge Schwab.
Enthusiastically tell everyone about the “Obama Amnesty Protest — Fire Boehner & McConnell Rally” across America on Saturday ... 2015-01-03 ... RSVP at the Facebook page “Obama Amnesty National Protest : 2015-01-03” ... https://www.youtube.com/watch?v=680NlRI3v2I ... Rally Team instructions at “http://www.engineering-excellence.us/stop_obama_amnesty.html" ... Share with ALL Patriot Friends and Tea Party groups ... Ted Cruz, Jeff Sessions, Mike Lee, Trey Gowdy (et al) GREATLY appreciate our support ... A great Patriot turn-out encourages the Senate and House GOP to FIRE the Machiavellian traitors John Boehner and Mitch McConnell ... This event does NOT accept-request “any” $$$ financial donations (period) ... “Sincere thanks” and Godspeed to All !!!
If the tyrant can ignore the laws, he can ignore the courts.
The only thing that will stop this bastard is impeachment.
And all the GOPe quislings are at the bank, cashing their checks.
Ask yourself why The Republicans did not undo Moter-Voter when they had both Houses and the Presidency?
True enough-—but it sure didn’t help Dems-—the party Motor Voter was intended to help in 2014 midterms.
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