Unilaterally issuing a plethora of benefits to millions of unauthorized aliens would mark one of the largest changes of immigration policy in this Nation’s history. Defendants now move to implement this benefits program immediately without meaningful judicial review – not even the resolution of this appeal. Such a drastic step would require an extraordinary showing of emergency and legal merit, and Defendants have failed to show anything close. In particular, they have identified no looming injury that could justify an ‘emergency’ stay. The preliminary injunction simply confines the Executive to what it previously admitted were the limits of its power, temporarily preventing the implementation of an unprecedented and practically irreversible benefits program in order to allow the Judicial Branch to review its validity.
As the states point out, “Congress has not given the Executive carte blanche to grant lawful presence to unauthorized aliens.”
The administration has tried to rely on “prosecutorial discretion” as its defense, but there was clearly no “discretion” involved in the mass approvals given to illegal aliens — the so-called “DREAMers” — under the 2012 DACA program. As the brief notes, the administration “mechanically approved applications that met DACA’s criteria; between 95%-99.5% of all applications were granted, and the Executive has not been able to identify a single application that was denied for a discretionary reason” (emphasis added).
Originally appeared in the National Review Online