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Don’t Judge a Brief by Its Cover: DACA Is a Good Policy That Congress Has Not Authorized

September 11, 2019 in Economics

By Josh Blackman, Ilya Shapiro

Josh Blackman and Ilya Shapiro

We recently filed an amicus brief “in support of DACA as a matter of policy but [the government] as a matter of law.” The caption caused quite a kerfuffle on social media. “Is that a thing?” they tweeted. Yes, it is a thing. And the court would be well served to receive more briefs that expressly acknowledge the distinction between law and policy. Most Supreme Court amicus briefs are predictable. Groups that favor outcome A argue that the law supports outcome A. Groups that favor outcome B argue that the law supports outcome B. Occasionally, groups file cross-ideological briefs in which people of opposite political stripes unite to support a specific cause. But even these briefs fall into the same pattern: Regardless of ostensible ideological labels, all the groups on the brief support the policy outcome that the brief’s legal theory advances.

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In Department of Homeland Security v. Regents of the University of California, the Cato Institute and Professor Jeremy Rabkin took a different approach. We affirmatively support as a matter of policy normalizing the immigration status of individuals who were brought to this country as children and have no criminal records. (See Cato’s immigration work if you have any doubts.) Moreover, as a matter of first principle, people shouldn’t need government permission to work. But the president cannot unilaterally make such a fundamental change to our immigration policy — not even when Congress refuses to act. Indeed, our deep concerns about the separation of powers and abuse of executive power motivated us to file this brief. Presidents with different priorities come and go. The principle that Congress cannot delegate its legislative power to the president, such that he alone can fix the law, remains.

Through the Deferred Action for Childhood Arrivals program, known as DACA, the Obama administration took the position that the Immigration and Nationality Act authorized the secretary of homeland security to confer lawful presence and work authorization on roughly 1.5 million aliens. The Trump administration reversed course. Attorney General Jeff Sessions concluded that this reading of …read more

Source: OP-EDS

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