executive power – USA Gov Policy

On February 18, the New York Analysis of Policy and Government noted:

“Has the Obama Administration decided to unilaterally, without the involvement of Congress, change the immigration law of the United States… In a report entitled ‘Immigration Handbook for the New Republican Majority’ outlining how Congress should respond to White House actions, Senator Sessions has accused the Obama Administration of acting unilaterally and in defiance of the Constitution. ‘President Obama has declared null and void the sovereign immigration laws of the United States in order to implement immigration measures the Congress has repeatedly and explicitly rejected. His order grants five million illegal immigrants work permits, Social Security, Medicare, and free tax credits—taking jobs and benefits directly from struggling American workers. U.S. citizens have been stripped of their protections they are entitled to under law…”

The issue is moving closer to a U.S. Supreme Court hearing. The Courthouse News Service reported on March 29 that the U.S. Supreme Court is set to hear arguments on April 18 on the Deferred Action for Parents of Americans, or DAPA, plan, an executive action that Mr. Obama announced in November 2014, which was enjoined by the Fifth Circuit. Texas, and 25 other states, submitted the brief to the Supreme Court, noting that the DAPA’s immigration regarding the non-deportation of illegals violates the law, and constitutes an overreach of executive power.

SCOTUS Blog reports “While the twenty-six states challenging the initiatives concede that the secretary of Homeland Security has unreviewable discretion to set immigration enforcement priorities (which the Supreme Court affirmed most recently in Arizona v. United States), they contend that the Obama administration has attempted to ‘effectively rewrite the laws’ through this particular use of its discretion. In particular, they argue that the Obama administration has exceeded the bounds of its authority on the basis that beneficiaries of DAPA and expanded DACA would be lawfully present and eligible for employment authorization while these initiatives are in effect.”

The American Immigration Council supports the concept that the President’s action is acceptable under “prosecutorial discretion,” and describes the program as follows:

“The Deferred Action for Parental Accountability (DAPA) is a prosecutorial discretion program administered by USCISthat provides temporary relief from deportation (called deferred action) and work authorization to unauthorized parents of U.S. citizens or Lawful Permanent Residents (LPRs). The DAPA program resembles the DACA program in some important respects, but the eligibility criteria are distinct.

The program will be open to individuals who:

have a U.S. citizen or LPR son or daughter as of November 20, 2014;
have continuously resided in the United States since before January 1, 2010;
are physically present in the United States on November 20, 2014, and at the time of applying;
have no lawful immigration status on November 20, 2014;
are not an enforcement priority, which is defined to include individuals with a wide range of criminal convictions (including certain misdemeanors), those suspected of gang involvement and terrorism, recent unlawful entrants, and certain other immigration law violators
present no other factors that would render a grant of deferred action inappropriate; and
pass a background check.

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DAPA grants will last for three years. The DAPA program should be ready to receive applications within 180 days.”

The issue might expand. CNS’ Terence P. Jeffrey worries that if, as Solicitor General Donald Verrilli believes, Obama has “prosecutorial discretion” to implement DAPA, he could also make illegals eligible for Social Security, disability and Medicare.

The brief submitted by the majority of all states in the U.S., notes Jeffrey, states that “The Executive Branch unilaterally created a program — known as DAPA — that contravenes Congress’s complex statutory framework for determining when an alien may lawfully enter, remain in, and work in the country,” the attorney general and solicitor general of Texas explained in a brief submitted to the Supreme Court on behalf of the states seeking to block the policy. DAPA would deem over four million unlawfully present aliens as ‘lawfully present’ and eligible for work authorization, says the Texas brief. And ‘lawful presence’ is an immigration classification established by Congress that is necessary for valuable benefits, such as Medicare and Social Security.”

The New York Analysis of Policy and Government concludes that the legal issue is not complex. While the President has the discretion to take limited action in particular instances, it is clear that he cannot take steps that essentially nullify or alter an existing law. DAPA essentially does precisely that.

Quick Analysis

Judge Merchan continues to deny justice to Donald Trump

In August of 2024, we discussed the US Supreme Court’s decision in Trump v. United States. We described the three tiered system enunciated by Chief Justice Roberts to determine whether or not the actions taken by the President of the United States are entitled to immunity from criminal prosecution or not. The first tier are acts within the President’s constitutionally mandated authority which are subject to “absolute immunity.” The next are acts that may have “presumptive immunity,” and are subject to examination with evidence that rebuts the presumption of immunity. The third are acts which are unofficial, and which enjoy no immunity. In September, we also discussed the effect this decision should have on the New York County criminal case currently pending against President-elect Trump before Judge Juan Merchan. We cited to a CNN report, which described the evidence used against Donald Trump at the trial of that matter: “Trump’s lawyers pointed to testimony at trial – including from White House officials Hope Hicks and Madeleine Westerhout – they argued should not have come before the jury…'[a]ll of Hicks’s testimony concerning events in 2018, when she was serving as the White House Communications Director, concerned official acts based on [Presidential] authority for which President Trump is entitled to absolute immunity,’ Trump’s attorneys argued. ‘[the Supreme Court’s ruling] specifically forbids prosecutors from offering ‘testimony’ from a President’s ‘advisers’ for the purpose of ‘probing the official act.’” Sure enough, as Chief Justice Roberts stated in the Presidential Immunity decision, “[a]llowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” At the time, we stated that “Judge Merchan allowed testimony regarding Donald Trump’s official acts as President, acts which enjoy absolute immunity and which cannot be used against him, or even be entered into evidence in a criminal trial, a situation which could have been avoided had Judge Merchan delayed the trial until he’d received the guidance of the US Supreme Court.” Nonetheless, we predicted that Judge Merchan “will find a way to justify his actions once again, and let stand the unlawful conviction of former President Donald Trump.” You know how much we hate to say we were right…but…we were right. “This Court…finds that the evidence related to the [President-elect’s] claims relate entirely to unofficial conduct and thus, receive no immunity protections,” Judge Merchan wrote in his December 16, 2024 decision. “Further, even if this Court were to deem all of the contested evidence…as official conduct falling within the outer perimeter of Defendant’s Presidential authority, it would still find that the People’s use of these acts as evidence of the decidedly personal acts of falsifying business records poses no danger of intrusion on the authority and function of the Executive Branch, a conclusion amply supported by non-motive-related evidence.” In so ruling, the Court denied Donald Trump’s motion to dismiss his New York County conviction. Let us examine these findings, in light of the evidence admitted at the President-elect’s trial, and then compare that evidence to the acts granted absolute immunity by the US Supreme Court. In his decision, Judge Merchan discusses the testimony of Hope Hicks, who served as the Communications Director for the Trump White House. “Defendant argues that in her roles at the White House, any communications between Ms. Hicks and Defendant must receive absolute immunity…as Defendant’s ability to speak freely to Ms. Hicks was a core function of the Executive. According to Defendant, because Ms. Hicks wielded executive power on his behalf, authority that exists pursuant to Article II of the Constitution, any communications [President Trump] had with [Hicks] are subject to absolute immunity,” the Court wrote. Judge Merchan also noted that “[t]he People argue that the communications Defendant had with Ms. Hicks…constitute unofficial acts not entitled to any level of immunity.” In his inevitable agreement with the arguments presented by Manhattan DA Alvin Bragg’s office, Judge Merchan wrote “Defendant’s argument that any communication he had with Ms. Hicks is subject to absolute immunity by virtue of the position she held in the White House is mistaken…the President himself may speak in his unofficial capacity as a candidate or party leader, and certainly he can do so in his private capacity as well. Any argument that private conduct transforms into official conduct by communicating about the same to an individual with a particular title is without merit.” Thus, it is Judge Merchan’s position that the conversations Donald Trump had with his Communications Director are not entitled to immunity, even though those discussions were held at the White House, while Donald Trump was serving as President of the United States, merely because those discussions were not related to official Executive Branch activities. Sounds possibly reasonable – until you examine the Presidential Immunity decision more closely. In September, we wrote that “the statement made by Chief Justice Roberts in his majority opinion in the Presidential Immunity case [is significant]; ‘Presidents cannot be indicted based on conduct for which they are immune from prosecution…[t]estimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.’” This statement by Chief Justice Roberts points to a blanket immunity for ANY discussions had between the President and his advisors, regardless of the nature of those communications. Further, we noted that the Supreme Court issued the following warning: “[t]he government…contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible.’” In rejecting that argument, Chief Justice Roberts states “[t]hat proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly – invite the jury to examine acts for which a President is immune from prosecution […]