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As Democratic leaders on Senate Judiciary Committee subcommittee with jurisdiction over administrative law, Senators reject district court judge’s unprecedented invalidation of Obama action

(Washington, DC) – Today, U.S. Senators Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.), Chris Coons (D-Del.), and Mazie Hirono (D-Hawaii) filed an amicus, or “friend of the court,” brief with the 5th Circuit Court of Appeals in the case of Texas v. United States, urging the court to overturn the lower court’s injunction blocking implementation of a Department of Homeland Security (DHS) initiative that offered relief from deportation to roughly 5 million undocumented immigrants who are parents of U.S. citizens or legal permanent residents, or who came to the United States as children. The Senators who signed the brief are either past chairs or current ranking members of the Senate Judiciary Committee subcommittee with jurisdiction over administrative law.

“President Obama’s executive action on immigration was well within his legal authority and was a step towards reforming our broken immigration system,” said the Senators. “The Senate has an interest in ensuring that when Congress gives the Executive Branch the authority and responsibility to execute America’s immigration laws in a humane and thoughtful manner, the federal courts respect Congress’s decision. The brief we have filed today makes that clear.

“If Judge Hanen’s decision is upheld, it will be a disaster not just for immigration law but for federal governance generally. If a judge can stop the Secretary of Homeland Security from providing commonsense guidance on immigration officials’ exercise of prosecutorial discretion, not only will it be impossible to have a reasoned immigration policy in this country, it will be impossible for other federal agencies to operate in a manner that is consistent and rational.”

The Senators who have stepped forward as amici curiae are all past or present Chairmen and Ranking Members of the Administrative Law Subcommittee of the Senate Committee on the Judiciary,” commented counsel of record Stephen B. Kinnaird, co-chair of the appellate practice of Paul Hastings LLP.  “Core principles of administrative law hang in the balance.  The Senators have urged the Fifth Circuit to vindicate those principles and preserve the powers of agency heads to give structured guidance to their subordinates in exercising enforcement discretion.”

In November 2014, the Obama Administration released guidance for two initiatives – Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of Deferred Action for Childhood Arrivals (DACA). In February, a district court judge ordered that implementation of the guidance be stopped because the Department of Homeland Security had not complied with the notice and comment requirements of the Administrative Procedures Act when releasing the November guidance. The Senators’ brief supports the Obama Administration’s appeal of that injunction. It demonstrates that Congress has delegated to the Executive Branch the authority to exercise prosecutorial discretion with respect to immigration enforcement and that the Executive Branch can provide guidance on the use of such discretion without going through the long, burdensome notice and comment process. The brief was written, pro bono, by Paul Hastings LLP.

Full text of the brief can be viewed here