The Senate Judiciary Oversight Subcommittee held a hearing yesterday on the implications of Texas v. United States - the case 26 governors and attorneys general brought against President Obama’s executive amnesties. Kris Kobach, the Kansas Secretary of State and former immigration advisor to U.S. Attorney General John Ashcroft, cited three reasons why the executive amnesties are unlawful: “(1) the executive actions do not comply with the requirements of the Administrative Procedure Act (APA); (2) even if they did comply with the APA, they would still be in direct violation of substantive provisions of federal law; and (3) even if they did not violate federal law, they would still be unconstitutional.”
Below are excerpts from his testimony.
On APA Non-Compliance:
“The APA requires that agencies implementing federal statutes in whole or in part do so through rulemaking… An administrative action that establishes criteria for exception from removal from the United States and defines a class with affirmative eligibility for benefits is quintessentially a “rule” under the APA… DHS has set out in [directives] a determination of future rights, privileges, and benefits. In so doing, the Administration has attempted to bury, outside of the APA, rulemaking decisions that have the ‘inherently arbitrary nature of unpublished ad hoc determinations.’… A central facet of the APA is the exposure of a proposed rule to public comment and criticism…By attempting to make this policy change through executive fiat, DHS avoided this public scrutiny and plainly violated the terms of the APA.”
On Violations of Federal Law:
“In 1996…(f)rustrated with executive non-enforcement of federal immigration laws, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)…Congress inserted several interlocking provisions…to require removal when immigration officers encounter illegal aliens…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.
“The DACA and DAPA Directives order the ICE officers to violate these provisions of federal law by declining to place certain aliens into removal proceedings, when federal law clearly requires them to place such aliens into removal proceedings...




















