Last week’s Senate Judiciary Committee hearings on Brett Kavanaugh’s Supreme Court nomination were contentious…to the say the least. Many critical issues that could potentially reach the high court were raised by Senators as they questioned the nominee.

One that got little attention (except for the protestors who managed to pack the hearing room) were potentially landmark immigration cases that are likely to be addressed by the Court in the coming months and years. One in particular – a challenge by seven states to the constitutionality of former President Obama’s Deferred Action for Childhood Arrivals (DACA) program stands out.

While the DACA case obviously affects the 700,000 or so illegal aliens who currently enjoy protection from deportation under the program, the constitutional issue of whether a sitting president can essentially nullify immigration laws duly enacted by Congress will have much longer term implications. In implementing DACA, President Obama essentially exempted an entire class of immigration lawbreakers from enforcement.

In 2016, the Supreme Court, with just eight members upheld a lower court’s ruling that two similar executive amnesty programs were unconstitutional by a 4-4 vote. Because it was an evenly split ruling, the 2017 decision was not a precedent-setting one. Having a ninth judge on the bench, who understands that the Constitution places responsibility for making U.S. immigration laws in the hands of Congress and requires that the executive branch make a good faith effort to implement and enforce those laws, will be critical.

With Judge Kavanaugh confirmed before the start of the Court’s new session in October, the case will be heard by the full nine judge panel that will issue a precedent-setting ruling. Both Justice Neil Gorsuch and Judge Kavanaugh’s judicial records suggest that they would overturn DACA and, more importantly, set legal precedent that precludes future presidents from attempting to grant illegal aliens de facto amnesty through claimed executive authority.

Dan Stein is president of the Federation for American Immigration Reform.



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