181 House Members File Amicus Brief in Court to Support President Obama’s Immigration Executive Actions

Washington, D.C. – Today, Democratic Leader Nancy Pelosi, Democratic Whip Steny Hoyer, Assistant Democratic Leader James E. Clyburn, Democratic Caucus Chair Xavier Becerra, Democratic Caucus Vice-Chair Joseph Crowley, Congressman John Conyers, Congresswoman Zoe Lofgren and other House Democrats filed an Amicus Brief in support of the Obama Administration’s appeal in the Fifth Circuit case of Texas v. United States.

181 House Democrats filed the brief on Monday in the appeal of Texas v. United States, which has reached the U.S. Fifth Circuit Court of Appeals following a federal district court ruling that granted a preliminary injunction that temporarily blocks the Secretary of Homeland Security from implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanding the Deferred Action for Childhood Arrivals (DACA) program, announced by the President of the United States last November as part of his Immigration Accountability Executive Actions.

In supporting the government’s position, the brief expresses the perspectives of Members of Congress that the deferred action programs (DAPA/expanded DACA) comport with Congressional will.  The deferred action programs derive from the Executive’s longstanding legal authority to exercise discretion in the enforcement of our immigration laws, to take necessary actions to carry out the Executive’s authority under the Immigration and Nationality Act, and to establish national immigration enforcement policies and priorities.  As such, they are traditional exercises of prosecutorial discretion that have been frequently used by administrations of both political parties for more than sixty years and repeatedly recognized by federal courts, including the Supreme Court.  As stated in the brief: “Congress has vested the Secretary of Homeland Security with broad discretion to determine how best to implement the immigration laws, including the particular decisions embodied in the Deferred Action Memorandum.”

The brief argues that House Democrats, as representatives of diverse communities across the United States, “have witnessed how an approach to enforcement of the immigration laws that does not focus on appropriate priorities, such as felons or national security threats, undermines confidence in the Nation’s immigration laws, wastes resources, and needlessly divides families.”  These deferred action programs are vital for appropriately using limited enforcement resources, shoring up America’s economy and strengthening families.

As stated in the brief, the district court’s ruling extends much broader than its procedural rationale under the Administrative Procedures Act, as it challenges “Congress’s decision to commit to the Secretary the discretion to set enforcement priorities and to determine how best to implement those priorities—including, if necessary, by channeling how subordinate agency personnel exercise their own discretion in enforcing federal law.”  The Democratic Members’ brief makes it clear that the district court’s decision interferes not only with the Executive’s authority granted by Congress, but also Congress’s authority: “The ruling therefore threatens the Executive’s ability to enforce statutes, within resource constraints, in a manner that remains faithful to Congress’s intent, and in turn threatens Congress’s ability to enact effective legislation.”

Full text of the amicus brief can be found here.


Additional Background: 

On November 20, 2014, the Obama Administration announced plans to expand the Deferred Action for Childhood Arrivals (DACA) program and to create a new Deferred Action for Parental Accountability (DAPA) program to offer temporary protection from removal to the parents of American citizens and lawful permanent residents.  On February 16, 2015, a federal district court in Texas preliminarily enjoined the implementation of those programs.  The Administration is appealing that decision and has requested expedited consideration of the appeal.  The Democratic Members’ amicus curiae brief is in support of the government’s appeal.


Summary of key points:

  • Congress has entrusted the Secretary of Homeland Security with broad discretion in the enforcement of the Nation’s immigration laws.

o   For decades, Congress has repeatedly recognized the executive branch’s authority to exercise discretion in the enforcement of our immigration laws.

o   When the Immigration and Nationality Act was first enacted in 1952, Congress authorized the Executive to adopt regulations, issue instructions, and take other acts necessary for implementing the law.

o   With the creation of the Department of Homeland Security in 2002, Congress explicitly directed the Secretary of Homeland Security to establish “national immigration enforcement policies and priorities.”  The one guideline that Congress has repeatedly imposed in recent years is that the Secretary should prioritize the identification and removal of people convicted of crimes based upon the severity of those crimes.

  • Courts have long recognized that Congress left it up to the Executive to determine how best to implement the immigration laws.

o   When the Fifth Circuit rejected a similar challenge brought by the State of Texas to the Federal government’s immigration enforcement efforts, the court recognized that our immigration laws “commit[…] enforcement of the INA to [the Secretary’s] discretion.”

o   Just three years ago, the Supreme Court explained that the “broad discretion exercised by immigration officials,” including “whether it makes sense to pursue removal at all,” is “[a] principal feature of the removal system.”

o   The deferred action programs are a rational and effective way to prioritize enforcement and carry out the will of Congress.

  • The issuance of the memorandum is unreviewable under the Administrative Procedures Act and fulfills the Executive’s constitutional duty to faithfully execute the law.  And even if it were reviewable under the APA, the issuance of the memorandum would not trigger the APA’s notice-and-comment requirements.


A full list of Members is provided below:

Alma S. Adams

Pete Aguilar

Karen Bass

Joyce Beatty

Xavier Becerra

Ami Bera

Donald S. Beyer, Jr.

Sanford D. Bishop, Jr.

Earl Blumenauer

Suzanne Bonamici

Madeleine Z. Bordallo

Brendan F. Boyle

Robert A. Brady

Corinne Brown

Julia Brownley

Cheri Bustos

G. K. Butterfield

Lois Capps

Michael E. Capuano

Tony Cárdenas

John C. Carney, Jr.

André Carson

Matt Cartwright

Kathy Castor

Joaquin Castro

Judy Chu

David N. Cicilline

Katherine M. Clark

Yvette D. Clarke

Wm. Lacy Clay

Emanuel Cleaver

James E. Clyburn

Steve Cohen

Gerald E. Connolly

John Conyers, Jr.

Jim Costa

Joe Courtney

Joseph Crowley

Elijah E. Cummings

Danny K. Davis

Susan A. Davis

Peter A. DeFazio

Diana DeGette

John K. Delaney

Rosa L. DeLauro

Suzan K. DelBene

Mark DeSaulnier

Theodore E. Deutch

Debbie Dingell

Lloyd Doggett

Michael F. Doyle

Tammy Duckworth

Donna F. Edwards

Keith Ellison

Eliot L. Engel

Anna G. Eshoo

Elizabeth H. Esty

Sam Farr

Chaka Fattah

Bill Foster

Lois Frankel

Marcia L. Fudge

Tulsi Gabbard

Ruben Gallego

John Garamendi

Alan Grayson

Al Green

Gene Green

Raúl M. Grijalva

Luis V. Gutiérrez

Janice Hahn

Alcee L. Hastings

Denny Heck

Brian Higgins

James A. Himes

Rubén Hinojosa

Michael M. Honda

Steny H. Hoyer

Jared Huffman

Steve Israel

Sheila Jackson Lee

Hakeem S. Jeffries

Eddie Bernice Johnson

Henry C. “Hank” Johnson, Jr.

Marcy Kaptur

Williams R. Keating

Robin L. Kelly

Joseph P. Kennedy, III

Daniel T. Kildee

Derek Kilmer

Ron Kind

Ann Kirkpatrick

James R. Langevin

John B. Larson

Brenda L. Lawrence

Barbara Lee

Sander M. Levin

John Lewis

Ted Lieu

Dave Loebsack

Zoe Lofgren

Alan S. Lowenthal

Nita M. Lowey

Ben Ray Luján

Michelle Lujan Grisham

Carolyn B. Maloney

Sean Patrick Maloney

Doris O. Matsui

Betty McCollum

Jim McDermott

James P. McGovern

Ann McLane Kuster

Jerry McNerney

Gregory W. Meeks

Grace Meng

Gwen Moore

Seth Moulton

Patrick E. Murphy

Jerrold Nadler

Grace F. Napolitano

Richard Neal

Richard M. Nolan

Donald Norcross

Eleanor Holmes Norton

Beto O’Rourke

Frank Pallone, Jr.

Bill Pascrell Jr.

Donald M. Payne, Jr.

Nancy Pelosi

Ed Perlmutter

Scott Peters

Pedro R. Pierluisi

Chellie Pingree

Stacey E. Plaskett

Mark Pocan

Jared Polis

David E. Price

Mike Quigley

Charles B. Rangel

Kathleen M. Rice

Cedric L. Richmond

Lucille Roybal-Allard

Raul Ruiz

C. A. Dutch Ruppersberger

Bobby L. Rush

Tim Ryan

Gregorio Kilili Camacho Sablan

Linda T. Sánchez

Loretta Sanchez

John P. Sarbanes

Janice D. Schakowsky

Adam B. Schiff

David Scott

Robert C. “Bobby” Scott

José E. Serrano

Terri A. Sewell

Brad Sherman

Albio Sires

Louise McIntosh Slaughter

Adam Smith

Jackie Speier

Eric Swalwell

Mark Takai

Mark Takano

Bennie G. Thompson

Mike Thompson

Dina Titus

Paul Tonko

Norma J. Torres

Niki Tsongas

Chris Van Hollen

Juan Vargas

Marc A. Veasey

Filemon Vela

Nydia M. Velázquez

Debbie Wasserman Schultz

Maxine Waters

Bonnie Watson Coleman

Peter Welch

Frederica S. Wilson

John A. Yarmuth