[House Report 114-457]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-457
======================================================================
AUTHORIZING THE SPEAKER TO APPEAR AS AMICUS CURIAE ON BEHALF OF THE
HOUSE OF REPRESENTATIVES IN THE MATTER OF UNITED STATES, ET AL. V.
TEXAS, ET AL., NO. 15-674
_______
March 16, 2016.-- Referred to the House Calendar and ordered to be
printed
_______
Mr. Sessions, from the Committee on Rules, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H. Res. 639]
The Committee on Rules, to whom was referred the resolution
(H. Res. 639) authorizing the Speaker to appear as amicus
curiae on behalf of the House of Representatives in the matter
of United States, et al. v. Texas, et al., No. 15-674, having
considered the same, report favorably thereon and recommend
that the resolution be adopted.
table of contents
Page
Purpose and Summary.............................................. 1
Background and Need for Legislation.............................. 2
Hearings......................................................... 6
Committee Consideration.......................................... 6
Committee Votes.................................................. 6
Committee Oversight Findings and Recommendations................. 8
Performance Goals and Objectives................................. 8
Advisory Committee Statement..................................... 8
Section-by-Section Analysis of the Legislation................... 8
Changes in Existing House Rules Made by the Resolution, as
Reported....................................................... 8
Minority Views................................................... 9
purpose and summary
This resolution authorizes the Speaker to appear as amicus
curiae on behalf of the House of Representatives in the matter
of United States, et al. v. Texas, et al., No. 15-674, and to
file a brief in support of the position that the petitioners
have acted in a manner that is not consistent with their duties
under the Constitution and laws of the United States. The
resolution also requires the Speaker to notify the House upon
his decision to file one or more briefs as amicus curiae
pursuant to this resolution. Finally, the resolution provides
that the Office of the General Counsel, at the direction of the
Speaker, will represent the House in connection with the filing
of any brief as amicus curiae pursuant to this resolution,
including supervision of any outside counsel providing services
to the Speaker on a pro bono basis for such purposes.
background and need for legislation
The President has failed on numerous occasions to fulfill
his duty under Article II, section 3 of the Constitution of the
United States to ``take Care that the Laws be faithfully
executed.'' He has ignored certain statutes completely,
selectively enforced others, and bypassed the legislative
process to essentially create law by executive fiat. These
unilateral actions have shifted the balance of power in favor
of the presidency, thereby diminishing Congress' constitutional
powers. Such a shift in power should alarm Members of both
political parties because it threatens the very institution of
Congress.
Contrary to its duty to faithfully execute the laws, the
Administration has acted unilaterally to rewrite the Nation's
immigration laws. These actions undermine the framework of the
Constitution, which separates power between the branches to
best protect liberty. The Constitution provides that, ``All
legislative Powers * * * shall be vested in a Congress of the
United States,'' including authority ``to establish a uniform
rule of naturalization.'' The following are examples of
executive overreach regarding the enforcement of the Nation's
immigration laws that are the focus of litigation (United
States, et al. v. Texas, et al., No. 15-674) currently before
the United States Supreme Court.
Deferred Action for Childhood Arrivals (DACA)
Napolitano Memo.--On June 15, 2012, Secretary of Homeland
Security Janet Napolitano issued a memo entitled ``Exercising
Prosecutorial Discretion with Respect to Individuals Who Came
to the United States as Children'' providing that the
Department of Homeland Security (DHS) would grant deferred
action to unlawful aliens who ``came to the United States under
the age of sixteen; have continuously resided in the United
States for a least five years preceding June 15, 2012, and were
present in the United States on that date; are currently in
school, have graduated from high school, have obtained a
general education development certificate, or are honorably
discharged veterans of the Coast Guard or Armed Forces of the
United States; have not been convicted of a felony offense, a
significant misdemeanor offense, multiple misdemeanor offenses,
or otherwise do not pose a threat to national security or
public safety; and are not above the age of thirty.'' The DACA
process is not directly at issue in the case U.S. v. Texas.
However, the manner in which DACA was implemented was material
to the lower courts.
U.S. Citizenship and Immigration Services (USCIS) first
granted DACA benefits in September 2012. Since the DACA term is
two years, the first grants began expiring in September 2014.
In May 2014, USCIS announced renewal procedures for initial
DACA recipients.
Deferred Action for Unlawful Alien Parents of U.S. Citizen and Legal
Permanent Resident Children (DAPA) and DACA Expansion
Johnson Memo.--On November 20, 2014, Secretary of Homeland
Security Jeh Johnson issued a memo entitled ``Exercising
Prosecutorial Discretion with Respect to Individuals Who Came
to the United States as Children and with Respect to Certain
Individuals Who Are the Parents of U.S. Citizens or Permanent
Residents.'' In this memo, Secretary Johnson ordered USCIS to:
1) expand the DACA process by removing the age restriction that
excluded those who were older than 31, extended DACA renewal
and work authorization periods from two to three years, and
adjusted the eligibility cut-off date by which a DACA applicant
must have been in the United States from June 15, 2007 to
January 1, 2010; and, 2) establish Deferred Action for Unlawful
Alien Parents (DAPA),``a process, similar to DACA, for
exercising prosecutorial discretion through the use of deferred
action, on a case-by-case basis, to those individuals who have
* * * a son or daughter who is a U.S. citizen or lawful
permanent resident; have continuously resided in the U.S. since
before January 1, 2010; are physically present in the United
States on November 20, 2014 * * * and at the time of making a
request for consideration of deferred action with USCIS; have
no lawful status on the date of this memorandum; are not an
enforcement priority (as defined) * * * ; and present no other
factors that, in the exercise of discretion, makes the grant of
deferred action inappropriate.'' This memo is directly at issue
in U.S. v. Texas.
The Migration Policy Institute estimated that 3.71 million
unlawful aliens will be potentially eligible to apply for DAPA.
The Obama Administration estimated the number to be 4.1
million.
Texas v. United States and the Challenge to DAPA
Over 25 states or state officials have filed suit
challenging the Administration's expansion of DACA and the
creation of a DACA-like program for aliens who are parents of
U.S. citizens or lawful permanent residents (DAPA). The states
allege that these administrative actions run afoul of the Take
Care Clause of the Constitution. Article II, section 3 declares
that the President ``shall take Care that the Laws be
faithfully executed,'' thus requiring the President to enforce
all constitutionally valid Acts of Congress, regardless of the
Administration's view of their wisdom or policy. The states
also allege that these legalizations run afoul of the
separation of powers set forth in the Constitution. Article I,
section 8 gives Congress, not the President, the authority ``to
establish a uniform rule of naturalization.'' While the Supreme
Court has indicated on several occasions that the President has
some measure of ``inherent'' power over immigration, see, e.g.,
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542
(1950), the Court has settled on the view that the formation of
immigration policy ``is entrusted exclusively to Congress,''
Galvan v. Press, 347 U.S. 522, 531 (1954), and that ``[t]he
plenary authority of Congress over aliens * * * is not open to
question,'' INS v. Chadha, 462 U.S. 919, 940-41 (1983).
Congress passed the Immigration and Nationality Act (INA),
which specifies the limited cases in which the Executive Branch
can suspend the removal of unlawful aliens. Finally, the states
allege that the legalizations violate substantive and
procedural requirements of the Administrative Procedure Act
(APA).
Administration Claims that DAPA is Merely An Exercise of Prosecutorial
Discretion
In ``Protecting the Homeland: Tool Kit for Prosecutors,''
ICE describes `deferred action' as ``not a specific form of
relief but rather a term used to describe the decision-making
authority of ICE to allocate resources in the best possible
manner to focus on high priority cases, potentially deferring
action on [removal] cases with a lower priority * * *''. This
includes, as they note in ``Continued Presence: Temporary
Immigration Status for Victims of Human Trafficking,'' such
action as ``not placing an individual in removal proceedings.''
DHS claims that grants of deferred action are merely an
exercise of prosecutorial discretion. See Texas v. U.S., No.
15-40238, slip op. at 34-35 (5th Cir. Nov. 9, 2015).
Prosecutorial discretion is the inherent authority of an agency
charged with enforcing a law to decide whether to devote
resources to enforce the law in particular instances. It
applies to both criminal and civil enforcement. The Supreme
Court found in Heckler v. Chaney, 470 U.S. 821 (1985), that
``an agency's decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally
committed to an agency's absolute discretion.'' Id. at 831.
However, the Court in Heckler stated that the Executive Branch
cannot ```consciously and expressly adopt[] a general policy'
that is so extreme as to amount to an abdication of its
statutory responsibilities.'' Id. at 833 n.4 (quoting Adams v.
Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973)(en banc).
To determine whether DAPA could fairly be characterized as
an exercise of prosecutorial discretion, the District Court
examined the operation of the DACA process. Despite its claim
that DACA was applied on a case-by-case basis, the
Administration could not provide a federal district court in
Texas with any examples of DACA applicants who met the
program's criteria but were denied DACA status. See Texas v.
U.S., Civ. No. B-14-254, slip op. at 109 n.101 (S.D. Tex. Feb.
16, 2015)(memorandum order and opinion). The Fifth Circuit
ratified the district court's finding, stating that DHS
``purported to identify several instances of discretionary
denials. . . The states properly maintain that those denials
were not discretionary but instead were required because of
failures to meet DACA's objective criteria.'' Texas v. U.S.,
No. 15-40238, slip op. at 49, 49 n.140 (5th Cir. Nov. 9,
2015)(affirming grant of preliminary injunction). In other
words, had this program truly been applied on a case-by-case
basis and had it not been binding on those who review
applications, one would suspect that there would be at least a
few instances in which a DACA applicant would have been denied
status. Proof of such cases simply did not exist.
In addition, the Fifth Circuit concluded that:
`` * * * there was evidence that the DACA application
process itself did not allow for discretion * * * The district
court's conclusion that DACA and DAPA would be applied
similarly * * * was not clearly erroneous and indeed was not
error under any standard of review * * * [W]e conclude that the
states have established substantial likelihood that DAPA would
not genuinely leave the agency and its employees free to
exercise discretion.'' Id. at 48, 48 n.139, 50.
USCIS considers unlawful aliens who have received DAPA
relief to be ``lawfully present,'' see Texas v. U.S., No. 15-
40238, slip op. at 38, and usually grants them work
authorization, see 8 C.F.R. Sec. 274a.12(c)(14)--making DAPA
in essence a grant of administrative, extra-statutory
legalization. The Fifth Circuit concluded that ``the INA
[Immigration and Nationality Act] flatly does not permit the
reclassification of millions of illegal aliens as lawfully
present and thereby make them newly eligible for a host of
federal and state benefits * * *'' Texas v. U.S., No. 15-40238,
slip op. at 63. And, while DHS claims that 8 U.S.C. Sec.
1324a(h)(3)--which provides that an alien is eligible to work
if they are ``either (A) an alien lawfully admitted for
permanent residence, or (B) authorized to be so employed by
this chapter or by the [Secretary of Homeland Security]''--
grants it the statutory authority to grant work authorization
to unlawful aliens at its choosing, the Fifth Circuit rejected
this interpretation, stating that ``[t]he interpretation of
th[e] provision[] that the Secretary advances would allow him
to grant * * * work authorization to any illegal alien in the
United States--an untenable position in light of the INA's
intricate system of immigration classifications and employment
eligibility.'' Id. at 62.
Procedural Disposition
On February 16, 2015, the district court (i) held that the
states have standing to sue, (ii) held that DAPA and DACA
expansions are judicially reviewable, and (iii) entered a
preliminary injunction prohibiting further implementation of
these programs on the ground that the states are likely to
prevail in their argument that the programs run afoul of the
procedural requirements of the APA. See Texas v. U.S. Civ. No.
B-14-254, slip op. at 67, 112, 123 (granting preliminary
injunction). Subsequently, on November 9, 2015, the U.S. Court
of Appeals for the Fifth Circuit affirmed the district court's
order granting a preliminary injunction. See Texas v. U.S., No.
15-40238, slip op. at 70. The Fifth Circuit concluded that (i)
the states had standing to sue, id. at 28, (ii) DAPA was a
reviewable agency action, id. at 40, (iii) DAPA's grant of
lawful presence and eligibility for benefits was a substantive
rule under the APA that must go through notice and comment, id.
at 42, (iv) ``the states have established a substantial
likelihood of success on the merits of their procedural
claim,'' id. at 54, that DAPA was ``manifestly contrary to the
statute'' and ``therefore was properly enjoined,'' id. at 66,
and (v) the states ``have satisfied the other requirements for
a preliminary injunction,'' id. The Administration then sought
review from the Supreme Court, which granted its petition for
certiorari on January 19, 2016. In so doing, the Court
indicated that it would also consider the plaintiffs' claims
under the Take Care Clause.
Conclusion
The questions presented in this case are extraordinarily
significant to the House of Representatives. In particular,
this case raises issues relating to the limits on Executive
discretion not to enforce laws enacted by Congress, as well as
the point at which the exercise of such discretion turns into
lawmaking, thereby infringing on Congress's Article I
legislative powers. It is precisely because of these
constitutional questions pending before the Supreme Court that
the House will take the rare step to consider this resolution
authorizing the Speaker to appear as amicus curiae on behalf of
the House of Representatives in this important litigation.
hearings
The Rules Committee held a hearing on this resolution on
March 16, 2016.
committee consideration
The Committee on Rules met on March 16, 2016 in open
session and ordered H. Res. 639, without amendment, favorably
reported to the House by a record vote of 7 yeas and 3 nays, a
quorum being present.
committee votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Mr. Woodall to report the resolution, without
amendment, to the House with a favorable recommendation was
agreed to by a record vote of 7 yeas and 3 nays, a quorum being
present. The names of Members voting for and against follow:
rules committee record vote no. 156
h. res. 639
Date: March 16, 2016.
Motion by Mr. Woodall to report the resolution to the House
with a favorable recommendation.
Agreed to: 7 yeas and 3 nays.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Not Not
Representative Yea Nay Present Voting Representative Yea Nay Present Voting
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman......................... X Ms. Slaughter, Ranking Member..... X
Mr. Cole........................................ X Mr. McGovern...................... X
Mr. Woodall..................................... X Mr. Hastings...................... X
Mr. Burgess..................................... X Mr. Polis......................... X
Mr. Stivers..................................... X
Mr. Collins..................................... X
Mr. Byrne....................................... X
Mr. Newhouse.................................... X
Mr. Sessions, Chairman.......................... X
---------------------------------
Vote Total: 7 3 0 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
The committee also considered the following amendments on
which record votes were requested. The names of Members voting
for and against follow:
rules committee record vote no. 155
h. res. 639
Date: March 16, 2016.
Motion by Ms. Slaughter to adopt Slaughter amendment #1,
which would express the position of the House in support of the
Obama Administration in U.S. v. Texas.
Not Agreed to: 3 yeas and 7 nays.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Not Not
Representative Yea Nay Present Voting Representative Yea Nay Present Voting
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ms. Foxx, Vice Chairman......................... X Ms. Slaughter, Ranking Member..... X
Mr. Cole........................................ X Mr. McGovern...................... X
Mr. Woodall..................................... X Mr. Hastings...................... X
Mr. Burgess..................................... X Mr. Polis......................... X
Mr. Stivers..................................... X
Mr. Collins..................................... X
Mr. Byrne....................................... X
Mr. Newhouse.................................... X
Mr. Sessions, Chairman.......................... X
---------------------------------
Vote Total: 3 7 0 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
committee oversight findings and recommendations
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings and
recommendations that are reflected in this report.
performance goals and objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the Committee establishes the
following performance related goals and objectives for this
legislation:
The resolution will ensure the Speaker is authorized to
appear as amicus curiae on behalf of the House of
Representatives in the matter of United States, et al. v.
Texas, et al., No. 15-674, and to file a brief in support of
the position that the petitioners have acted in a manner that
is not consistent with their duties under the Constitution and
laws of the United States.
advisory committee statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
section-by-section analysis of the legislation
First Section. This section provides independent authority
for the Speaker, on behalf of the House of Representatives, to
appear as amicus curiae in the matter of United States, et al.
v. Texas, et al., No. 15-674, and to file a brief in support of
the position that the petitioners have acted in a manner that
is not consistent with their duties under the Constitution and
laws of the United States.
Sec. 2. This section requires the Speaker to notify the
House upon his decision to file one or more briefs as amicus
curiae pursuant to this resolution.
Sec. 3. This section provides that the Office of the
General Counsel, at the direction of the Speaker, will
represent the House in connection with the filing of any brief
as amicus curiae pursuant to this resolution, including
supervision of any outside counsel providing services to the
Speaker on a pro bono basis for such purposes.
changes in existing house rules made by the resolution, as reported
In compliance with clause 3(g) of rule XIII of the Rules of
the House of Representatives, the Committee finds that this
resolution does not propose to repeal or amend a standing rule
of the House.
MINORITY VIEWS
H. Res. 639, authorizing the Speaker to file an amicus
brief on behalf of the House of Representatives in U.S. v.
Texas, is at best an unfortunate misuse of the House's time and
resources.
Congress has the constitutional power if not the obligation
to enact legislation making sense of our broken immigration
system. The system, as it stands, cruelly fails to distinguish
between hardened criminals and hard-working taxpayers who
entered the country simply to build a better life for their
families. It simultaneously fails to meet the needs of American
businesses and our economy. Instead of putting the interests of
the country first and bringing up the bipartisan, comprehensive
immigration reform bill passed by the Senate 68-32 last term
when they had the opportunity, House Republicans blocked it.
When the President sought to temporarily address some of
the most significant problems in our immigration enforcement
regime by exercising prosecutorial discretion and authority
granted to him explicitly by Congress, Republicans voiced their
objection.
But instead of opposing the Administration's policies using
the powers committed to the Legislative Branch by the
Constitution--including passing laws and overriding vetoes,
engaging in oversight and carrying out investigations, or
leveraging the power of the purse--Republicans have reached for
a tool not in their constitutional toolbox: running to the
courthouse. Rather than allow Congress to do its job,
Republicans insist on telling the other branches of government
how to do theirs.
House Republicans will file an amicus brief pursuant to
this resolution and it will masquerade as expressing the
position of the institution of the House of Representatives in
an inter-branch, separation of powers conflict. But the fact
is, this is nothing more than a partisan fight about elections
and immigration policy. Democrats, who represent half of the
country, were not consulted. We were denied an opportunity to
present an alternative. The Speaker's amicus brief does not
speak for the Democratic Members of the House.
President Obama's executive actions on immigration--
Deferred Action for Childhood Arrivals (DACA) and Deferred
Action for Parents of Americans and Lawful Permanent Residents
(DAPA)--are common-sense, lawful exercises of executive
discretion, consistent with the actions of presidents from both
parties over the last half dozen decades.
For example, from 1987 to 1990, Presidents Reagan and Bush
implemented a ``Family Fairness'' policy that deferred
deportation of an estimated 1 million spouses and children of
people who qualified for legal status. As President Obama is
doing today, President Reagan used his discretion to grant work
authorization to beneficiaries of deferred action, a
longstanding practice that was later codified by Congress in
the 1986 Immigration Reform and Control Act. Presidents from at
least Eisenhower to Clinton have done similarly, and there are
numerous laws on the books going at least as far back as 1952
explicitly instructing the Executive Branch either to exercise
prosecutorial discretion or prioritize enforcement in
immigration matters.
Even the Supreme Court, including Chief Justice Roberts and
Justice Anthony Kennedy, has acknowledged the legitimacy of
Executive Branch discretion in immigration. In U.S. v. Arizona,
the Court recognized that this broad discretion is a
``principal feature of the removal system'' and that it extends
to the question of ``whether it makes sense to pursue removal
at all.''
Indeed, such prioritization is necessary in light of the
fact that Congress appropriates only enough money for the
Department of Homeland Security to remove approximately four
percent of the undocumented immigrants already in the country.
But there is something more troubling here than the misuse
of the House's time and resources, the weakness of the
Republicans' legal argument, or the harm to the country and the
economy that would result from the implementation of their
preferred policies on immigration. Bringing this resolution to
the floor of the House at this particular moment says something
worrisome about the state of the Republican Party and its
leadership.
It is quickly becoming clear that this is a dangerous
moment in our country and in our political system. The
Republican presidential primary field is resorting to
demagoguery and nativism, fanning the flames of dangerous anti-
immigrant anger, and anger in general. What the President
rightly called ``vulgar and divisive rhetoric'' in the
Republican contest is a logical and foreseeable consequence of
the anger and fear carefully and deliberately cultivated by
decades of Republican campaign strategy, as Republicans went
beyond principled advocacy for smaller government to the
outright encouragement of people to think of government as the
problem and an enemy to be hated. In an effort to delegitimize
President Obama, they indulged conspiracy theories about our
first African American president being a foreign-born ``secret
Muslim'' who aspires to be a dictator and take away our
freedoms. And capping what the New York Times Editorial Board
characterized on March 15 as ``decades of pandering to
intolerance,'' Republicans have used hateful slurs to describe
Latino immigrants, saying they have ``calves the size of
cantaloupes,'' calling them ``wetbacks,'' ``dogs,''
``livestock,'' and saying they come from a ``violent
civilization.'' All of those things Republicans did and said to
win elections and score political points have helped prime the
electorate for this year's candidates.
Now that Republican leaders see what they have created, do
they take this opportunity to back off of the rhetoric? No,
they forge ahead with more anti-immigrant, anti-Latino
legislation, with more accusations that the President is a
lawless tyrant who violates the Constitution and makes his own
law.
If ever there were a moment for responsible leaders to take
a step back and use their positions of influence and power to
encourage level-headedness, this would be the time.
Our country of immigrants desperately needs its legislators
to reform its badly broken immigration system. Doing so would
create jobs, align the labor force with the needs of employers,
reduce our deficit, strengthen our economy, keep families
together, and make our communities safer by bringing millions
of people out of the shadows. That Republican leaders continue
instead to send to the floor of the House legislation designed
to appeal to people's fear and hatred, even as our political
system comes closer and closer to the edge of a crisis brought
about by the deliberate sowing of that same fear and hatred,
says something very worrisome indeed.
Louise M. Slaughter.
James P. McGovern.
Alcee L. Hastings.
Jared Polis.
[all]