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Our Last Hope: Rediscovering the Lost Path to Liberty
With his recent book, Our Last Hope: Rediscovering the Lost Path to Liberty, Michael Maharrey of the Tenth Amendment Center has done us all a tremendous service. Where previously there was but one popular volume dedicated to nullification, he has given us a second, thereby exponentially advancing efforts to restore this key concept to its proper role in public consciousness.
In 2010, Thomas Woods almost single-handedly resurrected the history of nullification, triggering a tide of controversy that is still washing over the American political scene. In Nullification: How to Resist Federal Tyranny in the 21st Century, Woods handed us long-ignored primary source documentation; succinctly helped us to understand their meaning and implications; and deftly cleared away gross misinformation around nullification’s purported relationship to confederacy and slavery. He kick-started the arduous process of navigating around political zombies so that Americans could start to see nullification as the powerful tool it is in reclaiming and maintaining states’ rights.
Now, via Our Last Hope, Maharrey has taken the next steps in making nullification even more accessible to a popular audience. Breaking nullification and its implementation into simple, memorable terms, he facilitates an easy embrace of nullification not just as a useful tool but as a truth revealed – much as if it were a basic mathematical formula: When the federal government reaches beyond its proper constitutional authority, remember who’s in charge and just say no.
With great effectiveness, Maharrey underscores the simplicity and power of this equation from the start by means of a resonant metaphor: What happens when your teenaged daughter comes downstairs in the morning wearing something too immodest in which to be seen out and about? Do you sit back and let her do whatever she pleases, or do you exercise your authority and insist that she march upstairs to change into something more appropriate before leaving the house? Anyone who has half a clue about responsible parenting immediately knows the answer.
The American system of government described in our founding documents places the people and the states in authority. We are the parents, charged with the solemn duty of ensuring that the federal government behaves according to its constitutionally established limits – our family rules. Yet, we have forgotten and no longer recognize the authority that we hold, Maharrey points out. Only when we remember, claim, and actively exercise our rightful authority can we begin to tame the unruly child that is our federal government – the child that has now convinced itself and many of us that it is the parent.
Maharrey doesn’t just deliver the formula, he helps us understand it, builds solid historical and logical cases around it. For example, walking us through the historical circumstances and documents that gave birth to initial expressions of nullification, he goes one better. He explains that even had James Madison and Thomas Jefferson, respectively, never written the concept into the Virginia and Kentucky Resolutions, nullification was actually a solution inherent to and fully spelled out within our American form of government, just waiting to be leveraged in the inevitable event that government would attempt to slip its moorings. Maharrey points us, in particular, to words taken straight from Virginia’s ratification of the United States Constitution.
Now, the interesting thing about ratification of the Constitution, as Maharrey points out, is that each state ratified separately. Moreover, each state’s ratifying instrument spelled out the specific conditions under which its people would ratify the Constitution and enter into the union. When accepted by the other states, these ratifying instruments each became binding on all states in the union, not just on the state that had submitted the instrument. All states were thus bound by Virginia’s ratifying instrument, which stipulated personal sovereignty – that the powers granted under the Constitution derived from the people and could be resumed by them whenever those powers became perverted to the injury or oppression of the people.
If the Principles of ‘98 are at the heart of Woods’ Nullification, I would argue that Virginia’s ratification language is the very soul of Maharrey’s book. It’s not that Woods doesn’t address the Virginia ratifying instrument. He does. But Maharrey plants a flag in it and shouts, “This way to liberty, everyone! The constitutional justification for nullification that’s supposedly lacking…? It’s right here!”
While the whole of Our Last Hope is engaging and enjoyable to read – woven through with popular references from Ghostbusters and Monty Python to chess and football – it is in its consideration of the Virginia language that Maharrey’s book inspires and empowers. States’ rights are nothing if not a powerful bulwark against the infringement of individual rights, but it is personal sovereignty itself that lies at the foundation of the whole American experiment – and on which Maharrey ultimately focuses his efforts to greatest effect. No wonder then that the final chapter of the book, which exhorts the reader to do the work of nullification, almost feels unnecessary. While the last chapter contains practical information, by the time the reader arrives there, Maharrey has likely already persuaded him not only to act rationally and enthusiastically in the interest of his own personal liberty but also to contend with any necessary challenges.
While they say there is no such thing as a perfect analogy, many of Maharrey’s come darned close. It’s a great boon, the apparent ease with which he couches the various aspects of his subject in terms the reader will not only understand but appreciate and often even have a good chuckle over. There was only one analogy that didn’t work for me, but that’s likely because it involved football, and I’m the closest one gets to sports illiterate. All in all, through the use of verbal illustration, the presentation of targeted primary source material, and the crystallization of ideas, Maharrey has written a work that is truly accessible to everyone…exactly what is needed.
Admirably, Maharrey also strives to keep his book on non-partisan footing. Liberty is not, in fact, a partisan ideal. The more that we can strip away false oppositions and build bridges in the fight for personal freedom, the better off we will all be. On this score, to nitpick just a bit, Maharrey’s use of the word progressive early on in the book seems a little too tied to Democratic policies, which might put off some readers. There are, after all, big-government progressives on both sides of the two-party “divide.” However, if the reader sticks with Maharrey to the end, it becomes abundantly clear that he sees in both major parties an ongoing willingness to bastardize the Constitution and compromise personal liberty.
Our Last Hope is available through the Tenth Amendment Center and on Amazon in both print and Kindle versions.
If I might make a suggestion, don’t just pick up a copy for yourself… Grab one for any state officials you know who may be looking for justification to take a stand for individual and states’ rights…or who you think might be persuadable. Don’t forget to highlight the passages about the Virginia Ratifying Instrument.
IRS: Internal Retaliation Service [Video]
In recent years, we have witnessed arrogant exploitation of power by the Department of Interior and the EPA as they push their political agendas. And now we’ve found out that the most feared government agency of all, the IRS, has engaged in direct partisan activity by selectively targeting private citizens who speak out for liberty, constitutional government, or free enterprise. The framers of our Constitution would not be surprised that government agencies, left unchecked, could use their powers for castigation and harassment. Of all government agencies, the IRS needs extraordinary oversight because of how it is uniquely empowered with the capacity to single out individuals for punishment.
Sen. Paul Proposes Resolution Condemning IRS
Sen. Rand Paul today proposed a resolution condemning the targeting of Tea Party groups by the Internal Revenue Service (IRS) and calling for an investigation.
“The IRS has been using taxing power as a political tool to bully these conservative groups and this type of intimidation is a major violation of our U.S. Constitution,” Sen. Paul said. “This act of discrimination should not be tolerated and I demand a formal investigation seeking criminal charges against any individuals who authorized or were involved in targeting people of the United States based on their political views.”
“The president has deemed this inexcusable, yet actions speak louder than words. It is time for President Obama and his Administration to act and it is our duty as Americans to hold them accountable,” he continued.
Below is an appearance by Sen. Paul on Fox News last night, discussing the resolution.
A copy of the resolution:
Nullification Redux: Tom Woods
This excerpt from a recent stock reply by a popular Republican governor – who shall here go nameless – is perhaps one of the best arguments imaginable for reading the book I’ve selected for my inaugural review here at TMR.
Dear Concerned Citizen:
Thank you for contacting me regarding enactment of a state law banning the enforcement of any federal law related to limits on semi-automatic weapons and high capacity magazines. I appreciate your thoughts on this important issue.
As Governor, I take public safety and the protection of Second Amendment rights seriously.
Under the Supremacy Clause of the U.S. Constitution, state laws do not take precedence over federal laws. Therefore, states enacting laws to prohibit the enforcement of a federal law or calling for the arrest of individuals attempting to enforce federal law are passing laws likely to be struck down in court.
There are federal laws I do not agree with just as I imagine there are state laws with which federally elected officials do not agree. However, as an elected official in the United States of America, I am confined to the Constitution of the state and nation as to what powers and limitations my office holds.
Despite the popularity he enjoys, this governor is dead wrong. Whether his constituents yet recognize it in significant numbers or not, his lack of constitutional knowledge and understanding will likely result in gross infringements on their constitutional rights.
When in 2010 Thomas Woods published Nullification: How to Resist Federal Tyranny in the 21st Century, he become not only one of the hottest but also one of the most controversial figures on the political scene – applauded by libertarians, constitutionalists, and large factions of the conservative grassroots; derided by the Democratic and Republican establishments alike. All for factually pointing out that the states have always had a way to exercise their sovereign authority and that it didn’t involve raising their hands and asking the federal government or its courts for permission.
Bully for Woods! You know you’ve hit the nail on the head when the “powers that be” start working to marginalize and dismiss you.
The 10th Amendment never belonged in a trunk in the nation’s attic, but that’s essentially where we as a people shoved it for more than a century. It’s also how we ended up in a good bit of the trouble in which we now find ourselves. In hauling the long-dormant concept of nullification and its vital history prominently back onto center stage, Woods helped to restore to popular public consciousness the single most powerful tool available to advance states’ rights. Moreover, he’s actually furthered the cause entire of individual freedom.
How…?
If the federal government can override, manipulate, coerce, or otherwise control the policy of your state government, it can also subjugate you. The 10th Amendment, then, is a powerful bulwark against despotism of all varieties – creeping, climbing, or cascading.
Woods doesn’t just educate his readers on how the Founders and other key figures of the 18th and 19th Centuries thought about the realities of federal overreach; he also provides concrete, examples – historic and recent – of successful state confrontations of the unconstitutional exercise of federal power. In doing so, he illuminates the vital role that nullification must play in responsibly and effectively challenging a power-guzzling behemoth that today has come to believe it has no limits at all.
The executive and legislative branches of the federal government have demonstrated pretty conclusively that they have no interest in limiting their own power. What’s more, recent events and a very long track record demonstrate Branch Number Three of the federal government, aka the Supreme Court, cannot and should not be relied upon to represent either infallibly or without bias the interests of the states or the people.
What civil course is left to us? Unless the states stand up in a commanding way, we’re done…every last one of us. It’s encouraging to see more states doing so on key issues – with health care, 2nd Amendment rights, and due process of law currently providing the lion’s share of motivation. That instinct, that inclination, that movement among the states to push back against federal power must grow substantially and quickly. It is the people, you and me, who must drive it.
The governor whose reply on 2nd Amendment rights is quoted above will not likely take the time to read Nullification himself. But I would encourage the citizens of his state to read it in droves. Armed with the knowledge it contains, they might be able to educate and nudge him in the right direction. And if they can’t, they might at least better understand that it will be in their own best interests to primary him with someone more informed who will uphold the duty to protect vital constitutional rights.
There’s the rub and the reason Nullification, despite having been in the marketplace for a while, should not cease to get attention: Too many people still haven’t been exposed to the crucial concepts it contains. At least once per day I find myself having to summarize its arguments for someone on my own side of the battle, someone who should already know. Worryingly, too many are still [albeit understandably] hoodwinked into believing that executive, legislative, and judicial are the three branches of constitutional government in our representative republic. Our institutions no longer teach that the three branches the Constitution actually identifies are instead: the people, the states, and the federal government. Executive, legislative, and judicial are simply arms of the branch that our Founders described in greatest detail, with the purpose of limiting it the most strictly.
Another of Nullification’s valuable strengths is its debunking of the myths and non sequiturs long used to keep this historic strategy from effective use. Understanding the truth about these roadblocks is pivotal to overcoming them.
Collectivists, for instance, love to brand nullification as a racist ploy to drag us back to the days of slavery. Quite the opposite turns out to be true. Nullification was used effectively by northern states like Wisconsin in the abolitionist cause, including resistance of the Fugitive Slave Act. Establishment Republicans, on the other hand, just like the one cited above, lazily demur, claiming that the Supremacy Clause prevents them from standing up to federal power – that any such efforts would only be defeated in the courts. As Woods deftly points out, federal courts are irrelevant to nullification.
Oh, and by the way, if nine unelected justices have the final word on what is and is not constitutional – not to mention what we can or can’t do about it – then we are already living under an oligarchy, not in a representative republic, and whatever power elected officials delude themselves into believing they have is merely an illusion. It might be fun to use that little tidbit of information strategically with the governor in question…
Woods knows nullification is going to be a big burr in the side of many, noting:
Yes, it throws a monkey wrench into the federal works. That’s precisely the point. Some will bemoan the states’ interference with the wheels of government in Washington. Why, this will be disorderly! But these are the sentiments we have heard and will always hear, until the end of time, from those who favor power over liberty. As one proponent of nullification observed, “It is impossible to propose any limitation on the authority of governments, without encountering, from the supporters of power, this very objection of feebleness and anarchy.”
Notice, further, what these critics do not consider disorderly: the ongoing and evidently ceaseless exercise of unconstitutional powers by the federal government. The alleged chaos that would result should the states follow Jefferson’s advice and defend themselves against unconstitutional expansions of federal power is where they pretend to detect such great danger. As usual, Jefferson had the correct reply to “the supporters of power.” “I would rather be exposed to the inconveniences attending too much liberty,” he said, “than to those attending too small a degree of it.”
Therein lies Nullification’s truest beauty. It’s not a partisan book. It’s a liberty book. And who the heck doesn’t want more liberty?
If you haven’t read Nullification yet, grab a copy and start respectfully speaking truth to power with additional authority. A Kindle version is also available for those who prefer digital copy. Buy a copy for a friend while you’re at it. It’s not often I say this sort of thing, but your personal liberty depends on knowing – and having a lot of other people know – what’s inside of this book.
Today Is Your Day—Vote, America
Originally posted at The Foundry by David S. Addington
In urging the delegates to a New York convention to ratify the U.S. Constitution in 1788, Alexander Hamilton emphasized the principal strength of the new Constitution: “Here, sir, the people govern.”
The federal government gets its mandate from the American people. You are in charge. Express your will: Vote.
You help govern your country through the exercise of your right to vote. As the U.S. Supreme Court has said: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”
When he first became President in 1885, Grover Cleveland stressed in his inaugural address the public trust held by every voter:
[H]e who takes the oath today to preserve, protect, and defend the Constitution of the United States only assumes the solemn obligation which every patriotic citizen—on the farm, in the workshop, in the busy marts of trade, and everywhere—should share with him. The Constitution which prescribes his oath, my countrymen, is yours; the Government you have chosen him to administer for a time is yours; the suffrage which executes the will of freemen is yours; the laws and the entire scheme of our civil rule, from the town meeting to the State capitals and the national capital, is yours. Your every voter, as surely as your Chief Magistrate, under the same high sanction, though in a different sphere, exercises a public trust.
In his farewell address to the American people in 1989, President Ronald Reagan echoed the words of President Cleveland a century earlier, emphasizing that the American people remain in charge of their government:
Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: “We the People.” “We the People” tell the government what to do; it doesn’t tell us.
On behalf of your fellow citizens, we ask you to choose carefully in deciding upon the Representatives, Senators, President, and state and local officials who will make our laws. Your choice, along with the choices of your fellow citizens, will determine what America is to become. You, your fellow citizens, and future generations will live in the America you choose.
As for The Heritage Foundation, we will do tomorrow and the next day exactly what we did yesterday and the day before: We will continue to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense. We know our principles and we adhere to them. That is our public trust. The American people can count on us, just as we count on the American people.
God bless the United States of America and its people. Now, go vote.
(David S. Addington is Senior Vice President and Deputy Chief Operating Officer of The Heritage Foundation.)
Haritage: Our Constitution Is Under Fire
Originally posted at The Foundry by Matthew Spalding, Ph.D.
Today, the federal government has acquired an all but unquestioned dominance over virtually every area of American life. It acts without constitutional limits and increasingly regulates our most basic activities, from how much water is in our toilets to what kind of light bulbs we can buy.
So while we face many challenges, the most difficult task ahead—and the most important—is to restore constitutional limits on government. Forty visionaries signed a piece of paper 225 years ago today that became one of the most vital documents in the world: the U.S. Constitution.
By design, it limited the power of government under the rule of law, created a vigorous framework that expanded economic opportunity, protected national independence and secured liberty and justice for all. But how is that limitation of powers working today?
The Judicial Branch. The rise of unlimited government is most familiar and most prominent in the form of judicial activism. The Founders called the judiciary the “least dangerous branch,” but progressive judges have usurped the functions of the other two branches and transformed the courts into policymaking bodies with wide-ranging power. We need judges who take the Constitution seriously and follow it faithfully.
The Legislative Branch. For its part, Congress has long legislated without regard to limits on its powers. As a result, decisions that were previously the constitutional responsibility of elected legislators are delegated to executive branch administrators. Congress is increasingly an administrative body overseeing a vast array of bureaucratic policymakers and rule-making bodies. Congress should stop delegating to bureaucrats and actively take responsibility for all the laws (and regulations) that govern us.
The Executive Branch. Meanwhile, the President has unique and powerful responsibilities in our constitutional system as chief executive officer, head of state, and commander in chief. But the idea that the president— who is charged with the execution of the laws—doesn’t have to wait for the lawmaking branch to make, amend, or abolish laws, but can and should act on his own is toxic to the rule of law. It violates the spirit, and potentially the letter, of the Constitution’s separation of the legislative and executive powers of Congress and the President.
It won’t be easy to return to the founding principles. We’ll have to move one step at a time, and walk back decades worth of bad decisions by members of all three branches of government. But it can be done, if we use the written Constitution as our guide and we believe that it means what it says and says what it means.
The Founders worked from the premise that government exists to secure God-given rights, and that it derives its just powers from the consent of the governed. And while many people take that for granted today, it was a novel idea in the 18th century and remains all too rare today.
Since Americans are equal, self-governing citizens and the United States government is limited, we have the liberty and opportunity to live our lives, control our fate, and pursue our happiness—and the American Dream.
That’s worth celebrating, today and every day.
But while our Constitution remains remarkably hale and hearty after all these years (it’s by far the longest-serving constitution in the world), it is under fire from many directions.
Let us remember today that we have the opportunity to rededicate this country to the Constitution and to the universal principles of liberty at its core. We can, and must, dedicate ourselves to the hard work of restoring constitutional self-government, and so preserving the American Dream for all.
ICE Agents File Suit Against Janet Napolitano
ICE AGENTS FILE SUIT AGAINST JANET NAPOLITANO
Agents Reject Order to Violate the Law and Their Oath to Defend the Constitution
WASHINGTON, D.C., August 23, 2012 – Ten officers and agents for United States Immigration and Customs Enforcement (ICE) including ICE Agents Union President Chris Crane, today filed a lawsuit against Secretary of Homeland Security Janet Napolitano and Immigration and Customs Enforcement Director John Morton challenging the Obama Administration’s deferred action Directive and associated Prosecutorial Discretion Memorandum that prevent ICE officers, employees, and agents from fulfilling their sworn oath to uphold the law and defend the US Constitution.
The Directive and the earlier memorandum instruct ICE officers to refrain from placing certain aliens who are unlawfully present in the United States into removal proceedings. The Directive further instructs officers to take actions to facilitate the granting of deferred action to aliens who are unlawfully present in the United States. The Directive, entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” also directs DHS personnel to grant employment authorization to certain beneficiaries of the Directive.
“Both the Directive and memorandum command our agents to violate federal law and our oaths to uphold federal law. We are federal law enforcement officers who are being ordered to break the law. This directive puts ICE agents and officers in a horrible position,” said Chris Crane, veteran ICE agent and President of the National Immigration and Customs Enforcement Council.
“The Directive is an extension of the DREAM Act, which was rejected by Congress, and aims to grant an amnesty to 1.7 million illegal aliens. It violates federal immigration laws that require certain aliens to be placed in removal proceedings, it violates the Administrative Procedure Act, and it encroaches upon the legislative powers of Congress as defined in Article I of the United States Constitution,” said Kris Kobach, the attorney representing the plaintiffs.
“Any threat of harm to our nation’s immigration officers for enforcing the law is a threat against the livelihoods of average American workers,” said Roy Beck of NumbersUSA, the organization that is underwriting the suit. “Congress passes laws to determine how many and which citizens of other countries are allowed to enter U.S. job markets to compete with American workers. Fortunately during this long period of high unemployment, Congress has refused to add further competition through amnesties that would give millions of illegal aliens access to the legal U.S. job market. The Napolitano amnesty directive does the opposite. If immigration agents are not allowed to enforce the laws as decided by Congress, the wages and jobs of American workers are at risk,” said Beck.
“This Directive not only circumvents Congress, it also infringes on the plaintiffs’ ability to fulfill the oath they made to uphold the laws of this country. The plaintiffs seek to prevent law enforcement officers from being forced to either violate federal law if they comply with the Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary,” said Kobach.
The complaint:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER L. CRANE, DAVID A. )
ENGLE, ANASTASIA MARIE )
CARROLL, Ricardo Diaz, )
Lorenzo garza, Felix )
Luciano, Tre Rebstock, )
fernando silva, Samuel )
Martin, and James d. doebler ) Civil Action No.
) 3:12-CV-_____
Plaintiffs, )
)
v. ) ) COMPLAINT
JANET NAPOLITANO, in her official )
capacity as Secretary of Homeland )
Security, and JOHN MORTON, in his )
official capacity as Director of )
Immigration and Customs Enforcement )
)
Defendants. )
INTRODUCTION
1. Plaintiffs are law enforcement officers of United States Immigration and Customs Enforcement (“ICE”).
2. On June 15, 2012, Defendant Secretary of Homeland Security Janet Napolitano issued a Directive entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (hereinafter “the Directive”). The Directive, attached to this Complaint as Appendix A, instructs ICE officers to refrain from placing certain aliens who are unlawfully present in the United States (“illegal aliens”) into removal proceedings, and to take actions to facilitate the granting of deferred action to aliens who are unlawfully present in the United States. The Directive also directs DHS personnel to grant employment authorization to certain beneficiaries of the Directive.
3. The requirements that an unlawfully present alien must assert to be granted the privileges described in the Directive are that the alien:
• came to the United States under the age of sixteen;
• has continuously resided in the United States for a least five years preceding June 15, 2012, and was present in the United States on June 15, 2012;
• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
• has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety; and
• is not above the age of thirty.
4. The Directive commands ICE officers to violate federal law, as detailed below, commands ICE officers to violate their oaths to uphold and support federal law, violates the Administrative Procedure Act, unconstitutionally usurps and encroaches upon the legislative powers of Congress, as defined in Article I of the United States Constitution, and violates the obligation of the executive branch to faithfully execute the law, as required by Article II, Section 3, of the United States Constitution.
5. Plaintiffs bring this civil action to seek injunctive relief preventing the implementation of this unlawful and unconstitutional Directive.
6. This lawsuit seeks to prevent law enforcement officer Plaintiffs from being forced to either violate federal law if they comply with the unlawful Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary. This lawsuit also seeks to preserve the balance of legislative and executive powers established by the United States Constitution.
THE PARTIES
Plaintiffs
7. Plaintiff Christopher L. Crane is an ICE Deportation Officer. He serves in Enforcement and Removal Operations at the Salt Lake City Field Office at 2975 Decker Lake Drive, Stop A, in West Valley City, Utah. He is also the President of the ICE Agents and Officers Union, AFGE Council #118. As an ICE Deportation Officer, Crane is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants.
8. Plaintiff David A. Engle is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Dallas Field Office at 8101 N. Stemmons Freeway, in Dallas, Texas. As an ICE Immigration Enforcement Agent, Engle is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
9. Plaintiff Anastasia Marie Carroll is an ICE Immigration Enforcement Agent. She serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Carroll is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
10. Plaintiff Ricardo Diaz is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Diaz is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
11. Plaintiff Lorenzo Garza is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Port Isabel Detention Center at 27791 Buena Vista Boulevard, in Los Fresnos, Texas. As an ICE Immigration Enforcement Agent, Garza is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
12. Plaintiff Felix Luciano is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the San Diego Field Office at 880 Front Street, Suite B-2232, in San Diego, California. As an ICE Immigration Enforcement Agent, Luciano is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
13. Plaintiff Tre Rebstock is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the Houston Field Office at 7405 C-1 Highway 75 South, in Huntsville, Texas. As an ICE Immigration Enforcement Agent, Rebstock is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
14. Plaintiff Fernando Silva is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations at the El Paso Field Office at 1545 Hawkins Boulevard, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Silva is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and issue administrative arrest warrants for aliens.
15. Plaintiff Samuel Martin is an ICE Immigration Enforcement Agent. He serves in Enforcement and Removal Operations in the El Paso Field Office at 8915 Montana Avenue, in El Paso, Texas. As an ICE Immigration Enforcement Agent, Martin is authorized to, inter alia, arrest aliens for immigration violations, arrest any person for felonies regulating the admission or removal of aliens, and execute administrative arrest warrants for aliens.
16. Plaintiff James D. Doebler is an ICE Deportation Officer. He serves in Enforcement and Removal Operations in the Dover Sub-Office at 1305 McD Drive, in Dover, Delaware. As an ICE Deportation Officer, Doebler is authorized by law to, inter alia, arrest aliens for administrative immigration violations or for any criminal offense against the United States and execute administrative and criminal arrest warrants.
17. Each plaintiff is authorized to execute the laws of the United States pursuant to statutory authority and delegated authority under regulations of the Department of Homeland Security.
Defendants
18. Defendant Janet Napolitano is the Secretary of Homeland Security and the head of the United States Department of Homeland Security (“DHS”) and in her official capacity is responsible for the enforcement of federal immigration laws, 6 U.S.C. § 112, 8 U.S.C. § 1101, et seq., pursuant to 8 U.S.C. § 1103(a)(2).
19. Defendant John Morton is the Director of United States Immigration and Customs Enforcement (ICE) and in his official capacity is responsible for administering all operations of the ICE. Defendant Morton is not authorized to promulgate regulations implementing the Immigration and Nationality Act.
20. Defendant Napolitano issued the Directive on June 15, 2012, and is the executive branch official responsible for its implementation by and through her inferior officers and other employees of DHS. Defendant Napolitano is the official authorized to promulgate regulations implementing the Immigration and Nationality Act in the Department of Homeland Security.
JURISDICTION AND VENUE
21. This Court has jurisdiction pursuant to 28 U. S.C. § 1331 over Plaintiffs’ claims under the Constitution and laws of the United States. This Court is authorized to grant Plaintiffs’ requests for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
22. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e) because the majority of the Plaintiffs named in this complaint reside and work in the State of Texas. Plaintiff Engle resides and works in the Northern District of Texas.
THE DIRECTIVE AND RELATED EVENTS
23. On June 17, 2011, Defendant Morton issued a Memorandum entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (the “Morton Memorandum”).
24. On June 15, 2012, Defendant Napolitano issued the Directive.
25. In July 2012, DHS issued the “ERO Supplemental Guidance: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children” which directs Plaintiffs and other DHS personnel to implement the terms of the Directive.
26. In early August 2012, DHS issued a document of more than 90 pages explaining how applicants for the benefits of the Directive would be processed by DHS, entitled “National Standard Operating Procedures (SOP): Deferred Action for Childhood Arrivals (DACA) (Form I-821D and Form I-765).”
27. On August 15, 2012, DHS began full implementation of the Directive, including receiving applications and distributing the benefits of deferred action and employment authorization.
28. The orders in the field that have been given to Plaintiffs by their supervisors are that an alien only needs to claim that he is covered by the Directive in order to be released and offered the benefits of the Directive. ICE agents are prohibited from demanding that an alien provide proof that he meets the Directive’s criteria.
29. On August 16, 2012, the Department of Homeland Security published a Federal Register Notice soliciting public comments on the Directive. The Notice offered for review and comment no actual rules that will be promulgated. Instead, it only solicited comments on the questions to be posed on the form that DHS has developed to accept applications for benefits under the Directive. DHS categorized the notice as an “information collection” exercise.
30. According to official estimates provided on August 16, 2012, by the U.S. Citizenship and Immigration Service, pursuant to the Paperwork Reduction Act, the number of aliens unlawfully present in the United States who qualify for the benefits offered by the Directive is estimated to be 1.76 million. Source: U.S. Citizenship and Immigration Services, Agency Information Collection Activities: Consideration of Deferred Action for Childhood Arrivals, Form I–821D, New Information Collection; Emergency Submission to the Office of Management and Budget; Comment Request, 77 Fed. Reg. 49451 (Aug. 16, 2012) (1,041,300 estimated total number of responses for new Consideration of Deferred Action for Childhood Arrivals, Form I-821D, USCIS); U.S. Citizenship and Immigration Services, Agency Information Collection Activities: Application for Employment Authorization, Form I–765, Revision of a Currently Approved Information Collection; Emergency Submission to the Office of Management and Budget; Comment Request, 77 Fed. Reg. 49453 (Aug. 16, 2012) (estimated 1,761,300 responses related to Application for Employment Authorization Document, Form I–765, USCIS; 1,385,292 responses related to Biometrics; 1,047,357 responses related to Application for Employment Authorization Document Worksheet, Form I–765WS, USCIS; and 1,761,300 responses to required Passport-Style Photographs).
31. According to the Department of Homeland Security, the number of aliens unlawfully present in the United States is estimated to be 11.5 million. Michael Hoefer, Nancy Rytina, and Bryan Baker, “Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2011” (March 2012), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_20…
FEDERAL STATUTORY BACKGROUND
32. In 1996, Congress sought to significantly reduce executive discretion in the enforcement of federal immigration laws: “[I]mmigration law enforcement is as high a priority as other aspects of Federal law enforcement, and illegal aliens do not have the right to remain in the United States undetected and unapprehended.” H.R. Rep. 104-725 (1996), at 383.
33. Enacted in 1996, 8 U.S.C. § 1225(a)(1) provides that “an alien present in the United States who has not been admitted … shall be deemed for purposes of this chapter an applicant for admission.”
34. 8 U.S.C. § 1225(a)(3) provides that all applicants for admission “shall be inspected by immigration officers.”
35. 8 U.S.C. § 1225(b)(2)(A) mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” (emphasis added).
36. Deferred action is not specifically authorized anywhere in federal law. Historically, deferred action has been utilized sparsely for small numbers of aliens in discrete distress pending statutory or foreign policy-mandated regulatory changes. No group of aliens has been granted deferred action in the past 15 years that approaches a fraction of the size of the class of aliens subject to the Directive.
37. Regulations describe deferred action only in the application sense as authorizing employment upon application in 8 C.F.R. § 274a.12(c)(14), or application for social security benefits, 8 C.F.R. § 1.3(a)(4)(vi). Accordingly, “deferred action” is a substantive government benefit.
38. Federal regulations do not authorize the Secretary to grant deferred action wholesale to a large number of illegal aliens.
39. Eligibility for a substantive benefit may not be conferred as a matter of discretion, but only by regulations promulgated under authority delegated by Congress, consistent with the terms of the law authorizing the regulations.
40. By definition, “prosecutorial discretion” cannot be used to confer a substantive benefit.
HARM
41. Plaintiffs have each sworn an oath to support and defend the Constitution of the United States and the laws of the United States.
42. Plaintiffs believe that if they follow the Directive, they will be violating their oath of office, as well as violating several laws of the United States.
43. Plaintiffs reasonably fear, based upon official communications to them, their knowledge of communications to Plaintiff Doebler, Plaintiff Martin, and Plaintiff Crane from their superiors, past events, and public sources, that if they follow the requirements of federal law, contrary to the “Directive,” and arrest an alien or issue an alien an Notice to Appear (NTA) in removal proceedings, they will be disciplined or suffer other adverse employment consequences.
44. Plaintiff James D. Doebler arrested an alien who was unlawfully present in the United States and issued the alien an NTA, contrary to the general directions of his supervisors that he should decline to issue NTAs to certain illegal aliens. Plaintiff Doebler was issued a Notice of Proposed Suspension. Plaintiff Doebler is facing a three-day suspension for arresting and processing the alien for a hearing rather than exercising the “prosecutorial discretion” commanded by his supervisors. Plaintiff Doebler requested a written directive ordering him not to issue the NTA. His supervisors have refused to give him a written directive and would not sign any paperwork authorizing the use of “prosecutorial discretion.”
45. Plaintiff Doebler reasonably fears, based on his past experience, that if he follows the requirements of federal law, contrary to the “Directive,” and arrests an alien or issues the alien an NTA, he will be disciplined again. He reasonably fears that a second disciplinary action will result in the loss of his job.
46. On July 17, 2012, Plaintiff Samuel Martin, along with another immigration enforcement agent, picked up an illegal alien from the El Paso County Jail. While the agents were trying to place the alien in the vehicle, the alien attempted to escape, and resisted and assaulted Plaintiff Martin and his colleague. The agents regained custody of the alien and transported him to the El Paso Criminal Alien Program office for processing. Plaintiff Martin’s supervisors ordered him to release the alien without any charges being filed against the alien and ordered Plaintiff Martin not to issue an NTA. The agents who were present protested the release of the alien; but they were told “it was a management decision, based on the President’s new immigration policies.” No supervisor ever asked the agents if they were injured or if they needed assistance. It is the understanding of Plaintiff Martin, reflected in his signed statement concerning the incident, that his supervisors gave him these orders based on the Directive.
47. On January 25, 2012, Plaintiff Christopher L. Crane, in his capacity as President of the ICE Agents and Officers Union, filed a Demand to Bargain with Defendants, expressing significant concerns with the Morton Memorandum, including that the actions that ICE agents would have to take or not take under it were contrary to federal law. The Demand to Bargain included the proposal that: “No employee will be subject to disciplinary or adverse action for refusing to obey an unlawful order.”
48. On April 5, 2012, Plaintiff Christopher L. Crane, in his capacity as President of the ICE Agents and Officers Union, submitted Additional Proposals, reiterating that officers should not be subject to discipline or adverse action for refusing to obey an unlawful order. Plaintiff Crane also filed an Information Request at that time.
49. On August 20, 2012, nearly eight months after the January 25, 2012, Demand to Bargain, Defendant Morton sent a letter to the ICE Agents and Officers Union merely indicating that Defendant Morton “may” formally respond to the January 25, 2012, Demand to Bargain and the April 5, 2012, Additional Proposals at an unspecified time in the future. In the past, when confronted with a Demand to Bargain letter, Defendants have ultimately refused to bargain at all and have refused to make any changes to their policies.
50. As of the filing of this complaint, Defendants have not changed ICE policies in any way in response to Plaintiff Crane’s January 25, 2012, Demand to Bargain and April 5, 2012, Additional Proposals.
51. Plaintiffs reasonably expect that the filing of a similar Demand to Bargain in order to protest the Directive would be treated in a similarly non-responsive manner, and that it would not result in any response or alteration of the Directive policy.
52. Because Plaintiffs are now being ordered to implement the Directive, they have an immediate and urgent need for relief. They are being ordered to violate federal law and are facing discipline or adverse employment action if they follow federal law.
53. Defendants are obligated, under the terms of their signed agreement with the ICE Agents and Officers Union, to issue an “Article 9A Notice of Proposed Change” prior to the alteration of agency policies. The purpose of such a Notice is to allow ICE agents and officers to provide input regarding proposed agency policies. No such Notice was issued prior to the June 15, 2012, Directive or its August 15, 2012, implementation date.
FIRST CAUSE OF ACTION
THE DIRECTIVE EXPRESSLY VIOLATES FEDERAL STATUTES REQUIRING THE INITIATION OF REMOVALS
54. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
55. 8 U.S.C. § 1225(a)(1) requires that “an alien present in the United States who has not been admitted … shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3), which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A), which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a are removal proceedings in United States immigration courts.
56. The Directive orders Plaintiffs to violate the above-listed provisions of federal law by declining to place certain aliens into removal proceedings, when federal law clearly requires Plaintiffs to place such aliens into removal proceedings.
57. The Morton Memorandum, as implemented by Defendants, asserts “prosecutorial discretion… [not] to issue, reissue, serve, file, or cancel a Notice to Appear (NTA),” in direct contradiction of 8 U.S.C. § 1225(b)(2)(A) in cases in which that statute applies.
58. Because Congress has expressly limited the discretion of Defendants to not initiate removal proceedings, any “prosecutorial discretion” that Defendants exercise must be consistent with 8 U.S.C. § 1225 and can only occur after an alien has been placed into removal proceedings as required by 8 U.S.C. § 1225, or under a provision of federal law expressly authorizing such “prosecutorial discretion.”
59. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to violate the requirements of federal law expressed in 8 U.S.C. § 1225.
60. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
SECOND CAUSE OF ACTION
THE DIRECTIVE VIOLATES FEDERAL LAW BY CONFERRING A NON-STATUTORY FORM OF BENEFIT, DEFERRED ACTION, TO MORE THAN 1.7 MILLION ALIENS, RATHER THAN A FORM OF RELIEF OR BENEFIT THAT FEDERAL LAW PERMITS ON SUCH A LARGE SCALE
61. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
62. “Deferred action” is a benefit that is not authorized in federal statute and is only authorized to a limited extent and for limited purposes in federal regulations.
63. No federal regulation authorizes the granting of the benefit of deferred action to aliens who are in the position of the more than 1.7 million beneficiaries of the Directive.
64. No federal regulation authorizes the conferral of the benefit of deferred action to an entire category of unlawfully present aliens numbering in excess of 1.7 million persons.
65. If an executive agency’s practice contradicts the express terms of federal law, that practice is ultra vires and unlawful.
66. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to violate the requirements of federal law expressed in 8 U.S.C. § 1225.
67. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
THIRD CAUSE OF ACTION
THE DIRECTIVE VIOLATES FEDERAL LAW BY CONFERRING THE LEGAL BENEFIT OF EMPLOYMENT AUTHORIZATION WITHOUT ANY STATUTORY BASIS AND UNDER THE FALSE PRETENSE OF “PROSECUTORIAL DISCRETION”
68. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
69. The Directive purports to use “prosecutorial discretion” to grant the benefit of employment authorization to unlawfully present aliens.
70. Employment authorization is a benefit under federal regulations that is “granted” to beneficiary aliens. 8 C.F.R. § 274a.12(c)(14).
71. Federal law specifies the circumstances under which aliens may be granted the benefit of employment authorization.
72. The Morton Memorandum on pp. 2-3 lists twelve ways in which “prosecutorial discretion” may purportedly be exercised in immigration law, but nowhere mentions the conferral of the benefit of employment authorization.
73. “Prosecutorial discretion,” insofar as it is permitted by federal immigration law, is by definition the exercise of discretion not to remove; it is not the conferral of a benefit.
74. To the limited extent that any “prosecutorial discretion” is permitted by federal immigration law, such discretion allows ICE to seek the cancellation or withholding of a removal. The exercise of “prosecutorial discretion” does not permit any DHS employee or officer to grant unlawfully present aliens the benefit of employment authorization in the manner attempted by the Directive.
75. U.S. Citizenship and Immigration Services is not a law enforcement agency.
76. A non-law-enforcement agency cannot exercise prosecutorial discretion.
77. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to confer a substantive benefit on aliens that is not authorized by federal law.
78. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
FOURTH CAUSE OF ACTION
THE DIRECTIVE VIOLATES THE CONSTITUTIONAL ALLOCATION OF LEGISLATIVE POWER TO CONGRESS
79. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
80. Article I, section 1, of the United States Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
81. The Development, Relief, and Education for Alien Minors Act (DREAM Act), in various forms, has been proposed in Congress at least 24 times. It was introduced in the following bills: S. 1291, 107th Cong. §§ 2, 3 (2001); S. 1545, 108th Cong. (2003); S. 2863, 108th Cong. §§ 1801-1813 (2004); S. 2075, 109th Cong. (2005); H.R. 5131, 109th Cong. (2006); S. 2611, 109th Cong. §§ 621–632 (2006); H.R. 1275, 110th Cong. (2007); H.R. 1645, 110th Cong. §§ 621-632 (2007); S. 774, 110th Cong. (2007); S. 1348, 110th Cong. §§ 621–632 (2007) (as amended by S.A. 1150 §§ 612–619); S. 1639, 110th Cong. §§ 612-620 (2007); S. 2205, 110th Cong. (2007); H.R. 1751, 111th Cong. (2009); S. 729, 111th Cong. (2009); H.R. 5281, 111th Cong. §§ 5-16 (2010); H.R. 6497, 111th Cong. (2010); S. 3827, 111th Cong. (2010); S. 3932, 111th Cong. §§ 531-542 (2010); S. 3962, 111th Cong. (2010); S. 3963, 111th Cong. (2010); S. 3992, 111th Cong. (2010); H.R. 1842, 112th Cong. (2011); S. 952, 112th Cong. (2011); S. 1258, 112th Cong. §§ 141-149 (2011); H.R. 5869, 112th Cong. (2012).
82. The principal provisions of the DREAM Act, as reiterated in the two dozen DREAM Act bills introduced in Congress, are that it establishes a class of unlawfully present aliens who may apply for cancellation of removal and either temporary or conditional lawful residence, and then may adjust to lawful permanent resident status or have the conditions removed. The class is generally defined as those aliens who arrived in the United States as minors, have been physically present in the United States for a period of years (typically five years) prior to enactment, have not been convicted of a felony or two or more misdemeanors and do not pose a threat to national security or public safety, have earned a high school diploma or a general education development certificate in the United States, and are below a certain age (typically early to mid-thirties) on the date of enactment. Qualifying aliens whose removal is cancelled and who are granted temporary or conditional residence then must be admitted to, or earn a certain number of credits in, an institution of higher education or serve honorably in the U.S. Armed Forces for a certain period in order to adjust to lawful permanent resident status or have the conditions on their status removed.
83. The DREAM Act has never been passed by both houses of Congress and signed into law by the President.
84. The fact that the DREAM Act has been proposed in Congress two dozen times, and has been voted on by the United States House of Representatives and by the United States Senate, indicates Congress’s understanding that federal legislation is required in order to achieve these objectives.
85. The Directive attempts to confer continued presence in the United States, as well as employment authorization, to all aliens meeting the criteria specified in the Directive.
86. The unlawfully present aliens who are given benefits by the Directive are substantially the same aliens that would have been given benefits by the DREAM Act, had it passed both Houses of Congress and been signed into law by the President.
87. The conferral of legal rights and privileges to a large class of persons meeting certain criteria is a legislative act.
88. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is not an exercise of executive branch discretion permitted by the Constitutioin. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is a legislative act of amnesty, the granting of a legislative benefit, or an act otherwise exceeding the Secretary’s authority as a principal officer under the Constitution by usurping legislative authority.
89. Because the Directive is a legislative act that Defendants have implemented through executive action, it is in violation of Article I, section 1, of the United States Constitution.
90. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to exercise legislative powers through the issuance of directives.
91. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
FIFTH CAUSE OF ACTION
THE DIRECTIVE VIOLATES THE ARTICLE II, SECTION 3, CONSTITUTIONAL OBLIGATION OF THE EXECUTIVE TO TAKE CARE THAT THE LAWS ARE FAITHFULLY EXECUTED
92. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
93. Article II, section 3, of the United States Constitution requires that the President, by and through his executive branch officials, including Defendants, “shall take Care that the Laws be faithfully executed.”
94. The application of “deferred action” to approximately 15% of aliens who are in the United States without authorization is not consistent with the executive’s duty to take care that the laws be faithfully executed. In effect, the Directive orders that the law shall not be executed against a class of more than 1.7 million aliens.
95. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to decline to enforce federal immigration laws against a class of more than 1.7 million aliens.
96. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
SIXTH CAUSE OF ACTION
THE DIRECTIVE VIOLATES THE ADMINISTRATIVE PROCEDURE ACT THROUGH CONFERRAL OF A BENEFIT WITHOUT REGULATORY IMPLEMENTATION
97. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
98. The Administrative Procedure Act requires that agencies implementing Congressional statutes in whole or in part through an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy do so through a rulemaking. A rulemaking under the Administrative Procedure Act is defined as the agency process for formulating, amending, or repealing a rule through notice and comment procedures under the Administrative Procedure Act, 5 U.S.C. § 553. The Immigration and Nationality Act delegates authority to the Secretary of Homeland Security and the Attorney General to implement its provisions through regulations. The Secretary has not promulgated any regulation that establishes the criteria for eligibility for relief from removal from the United States or the granting of employment authorization. The Directive identifies a large class of individuals by specific eligibility criteria against whom the immigration laws of the United States requiring their removal shall not be executed and who are made eligible for specific benefits.
99. Establishing a class of eligibility by criteria for exception from removal from the United States and affirmative eligibility for benefits is quintessentially a “rule” under the Administrative Procedure Act, 5 U.S.C. § 551(4). The Secretary has not issued a notice of proposed rulemaking or promulgated a final rule in conformity with the Administrative Procedure Act. The Directive is not a rule under the Administrative Procedure Act.
100. The Directive is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, and without observance of procedure required by the Administrative Procedure Act.
101. Defendant Napolitano’s issuance of a Federal Register Notice on August 16, 2012, as part of a so-called “information collection” exercise in no way satisfies the publication and comment requirements for rulemaking under the Administrative Procedure Act.
102. Defendant Napolitano’s authority under 8 USC § 1103(a)(5) and 8 CFR § 2.1 does not authorize her to order her subordinate officers or employees to circumvent the terms of the Administrative Procedure Act by simply issuing “directives” or “orders” that confer substantive legal benefits and privileges, and significantly transform the enforcement of federal immigration law.
103. Plaintiffs seek a declaratory judgment to these effects, together with corresponding injunctive relief.
PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that the Court:
A. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive is unlawful and in violation of Article I of the Constitution of the United States as a usurpation of legislative authority and vacate the Directive;
B. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive is unlawful and in violation of Article II of the Constitution of the United States as in excess of executive authority and vacate the Directive;
C. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(B) that the Directive and relevant provisions of the Morton Memorandum are unlawful and in violation of 8 U.S.C. § 1225(b)(2)(A) and vacate the Directive and relevant provisions of the Morton Memorandum.
D. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(C) that the Directive is unlawful and in violation of the Immigration and Nationality Act as in excess of delegated authority and vacate the Directive;
E. Declare pursuant to 28 U.S.C. §§ 2201 and 2202 and 5 U.S.C. § 706(2)(D) that the Directive is unlawful and in violation of the Administrative Procedure Act as a rule promulgated without conforming to the procedure described therein and vacate the Directive;
F. Temporarily restrain, preliminarily enjoin, and permanently enjoin Defendants and their subordinate officers, employees, and agents from implementing or enforcing the Directive, or taking any adverse action against plaintiffs pursuant to the Directive or for not following the Directive;
G. Direct Defendants to pay all costs associated with this lawsuit; and
H. Grant such other and further relief as this Court deems equitable, just, and proper.
Dated: August 23, 2012 By: s/ Kris W. Kobach
KRIS W. KOBACH
Kansas Bar No. 17280 (pro hac vice applic. forthcoming)
Kobach Law, LLC
4701 N. 130th St.
Kansas City, Kansas 66109
P. MICHAEL JUNG
Texas Bar No. 11054600
Strasburger & Price, LLP
901 Main Street, Suite 4400
Dallas, Texas 75202
Attorneys for Plaintiffs
Judge Napolitano on the 2012 Election, Obamacare, and The Future of Liberty
“Those of us who really yearn for a return to first principles, the natural law, the Constitution, a government that only has powers that we have consented it may have… are frustrated by the choice between Barack Obama and Mitt Romney,” says Judge Andrew Napolitano, author of the upcoming book “Theodore and Woodrow: How Two American Presidents Destroyed Your Constitutional Freedoms,” Fox Business contributor, and former host of “Freedom Watch.”
Reason.tv’s Matt Welch sat down with Napolitano at FreedomFest 2012 and discussed the ramifications of the Supreme Court’s ruling on the individual mandate and whether or not there’s a substantive difference between Barack Obama and Mitt Romney from a libertarian perspective.
Held each July in Las Vegas, FreedomFest is attended by around 2,000 limited-government enthusiasts and libertarians a year. ReasonTV spoke with over two dozen speakers and attendees and will be releasing interviews over the coming weeks. For an ever-growing playlist, go here now:
Bozell on Tomorrow’s Implementation of HHS Mandate: “Obama has shredded the First Amendment”
“August 1st is a day that will live in infamy for the First Amendment and the fundamental freedoms and rights we as a people have enjoyed since the founding of our nation. The HHS mandate imposed on the American people is the beginning of the end of freedom as America has known it and loved it. August 1st marks the day when many family owned and operated businesses lose their rights to exercise their faith in their daily lives. The government has told them — either comply with this mandate in violation of your faith and do what we tell you, or you will pay crippling faith fines to the federal government. With the stroke of a pen, the Obama Administration has shredded the First Amendment and the Constitution right before our eyes.”
Conscience Cause Extremely Disappointed HHS Mandate in ACA Upheld
In response to the Affordable Care Act SCOTUS ruling today, Conscience Cause, a non-profit, non-partisan, public policy advocacy organization comprised of leaders from various faiths and political parties united to secure and preserve our religious freedom, released the following statement:
“We are extremely disappointed by the Supreme Court’s decision to uphold the Patient Protection and Affordable Care Act, which will allow the administration to move forward in implementing its radical HHS mandate that violates our rights of conscience. The first line of the First Amendment in our Constitution guarantees all Americans the right to religious freedom, as our forefathers intended. Now, we have opened the door to a government that sees no limit to the amount of freedoms it can take away.
The HHS mandate represents an egregious affront to religious liberty, and is opposed by Americans of all faiths and denominations.
People of all faiths and who believe in protecting our constitutional principles will continue the fight to repeal and bar any regulation that would compel individuals and institutions, including religious hospitals, schools and charities, to violate the tenets of their faith or be subject to penalty of law. Conscience Cause will continue our efforts to petition Congress to take action to overrule this devastating policy, which undermines our religious freedom. If we do not stand up and make our voices heard, it is only a matter of time before our other liberties come under direct assault.”
