United States v. Texas: Observations

Gavel, scales of justice and law booksLast Thursday, in a 4-4 split, the United States Supreme Court upheld a lower court’s injunction blocking implementation of President Obama’s Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA+) programs. Yet to be decided is whether the proposed DAPA and DACA+ programs exceeded the constitutional powers of the president. This situation provokes the following thoughts:

First. It should be kept in mind that the judge in Texas who issued the injunction would not have done so if he believed that the states did not have a valid constitutional argument that the president was attempting to exceed his authority. So, a future decision on the merits of the states’ case may be presumed to also go against the president’s action. The same may be said with regard to any appeal process.

Second. The argument that the president was exceeding his constitutional authority may be applied equally to his earlier action in promulgating the 2012 Deferred Action for Childhood Arrivals (DACA) program. That program has already been implemented, so it is too late to prevent it with an injunction. Nevertheless, a basis still exists for challenging the program as unconstitutional.

Third. The power that the president was usurping was the power to set the nation’s immigration policy, and that is constitutionally assigned to the legislative branch. The failure of Congress to act against DACA and DAPA demonstrates a failure of congressional leadership on immigration. That, however, is no excuse for the absence of any serious attempt by Congress to uphold its constitutional responsibilities.

Last. According to the June 24 Washington Post, presumptive Democratic presidential candidate Clinton commented in response to the Supreme Court action, “I believe we are stronger when we embrace immigrants, not denigrate them” Note that this comment ignores any distinction between legal immigrants invited into the country and those who violate the nation’s law by taking up illegal residence. The failure to distinguish between immigrants and illegal aliens is tantamount to endorsing an open border. And, it seems clear that a president who supported an open border would be seen abroad as inviting illegal immigration.

About Author


Jack, who joined FAIR’s National Board of Advisors in 2017, is a retired U.S. diplomat with consular experience. He has testified before the U.S. Congress, U.S. Civil Rights Commission, and U.S. Commission on Immigration Reform and has authored studies of immigration issues. His national and international print, TV, and talk radio experience is extensive (including in Spanish).


  1. avatar

    When I see power mad politicians like Hillary, who would bankrupt and destroy their own country by bringing in millions of impoverished people in order to get more votes for their campaign, the following saying comes to mind:

    “We are sewn with the seeds of our destruction.”

    • avatar

      “I am adamantly against illegal immigration.” Hillary in 2003. She will probably say she’s “evolved”, but that’s something you do when you’re young. Few believe everything they did at 20. She cares about votes, only.

  2. avatar

    What other country panders to illegals like this country? What other country rewards lawbreakers with citizenship and all the benefits that come with it. What other country thinks it a positive that in a ever more technical oriented world moving toward more automation that we take in millions upon millions of low education low skilled workers with large families that make them eligible for many government assistance programs.

    Hillary cares about votes, period. That’s why she panders to Black Lives Matter, an organization founded on a criminal who robbed and assaulted a storekeeper and then tried to take a cop’s gun, as even the Justice Dept. completely cleared the cop. This weekend in California, for the third time in three months, “protestors” attacked a group of people who had a legal permit to assemble, as repugnant as their message is or not. Like the Trump supporters attacked a month ago, the authorities are allowing these attacks and people are getting hurt. Is this the future of the country? Not surprising though. Instead of standing up for free speech, many on the left wanted the maker of that dumb movie about Mohammed prosecuted because the film supposedly caused riots. Way to knuckle under to a 15 century theology.

    The press is also in full spin on the Brexit vote. If the EU had stuck to a policy of free trade among nations of roughly equal standards of living and a common currency, that was a good idea. Instead it became a nanny state run from Brussels and forcing nations like Britain to transfer wealth to other nations that refused to manage their economies well.

    And there are the usual media charges of racism against immigrants. Except most of the immigrants, coming because of the EU’s policy of free movement across borders, are from Eastern Europe, mainly Poland. But there are not enough jobs for both them and the native Brits. The press is also making much ado about an online “petition” of 3 million calling for another vote, as if it’s proof of something. Many of the votes are already shown to be fraud, many are from outside the UK, and who knows what percentage are simply the remain crowd wanting another bite at the apple. But hey, there’s a media line to be spread and that’s all there is to it.

    • avatar

      Japan isn’t bringing all these poor, low skilled people in and they don’t reward illegals at all. In fact, they arrest them and put them in jail. They also have a much smarter trade strategy than we do. They are also financially in much better shape and perform better in terms of trade.

      Japan has not had the problems regarding immigration and trade that have led to Brexit and Trump’s rise because they decided to remain a homogeneous society and not open up to immigration from every corner of the world and they have pursued a much smarter trade strategy than the US and Britain. We won World War 2, but it looks like Japan has won the peace.

      • avatar

        Japan is the world’s largest creditor nation with over $3 trillion in net external assets. The US is the world’s largest debtor nation with over $7 trillion in net external liabilities.