Conservative Groups, Lawmakers Gear Up to Battle Biden’s ‘Blatantly Illegal’ Mass-Amnesty Immigration Order

Just one day after President Joe Biden announced his new mass-amnesty package for illegal immigrant spouses of U.S. citizens, conservative groups and lawmakers are already preparing to fight back against what they say is an unconstitutional power grab.

The order, announced Tuesday, would grant citizenship to the spouses of Americans who have resided in the country for more than ten years, among other provisions intended to “keep families together.” The White House estimates it would impact some 550,000 immigrants who entered the country illegally.

The America First Legal Foundation, a conservative legal group founded by former Trump administration official Stephen Miller, is already preparing to challenge the executive order on the grounds that it encroaches on Congress’s authority to set immigration law.

“What Biden is trying to do is completely erase this other statutory provision congress put in law that bars people from adjusting their status in the United States if they came in illegally,” Gene Hamilton, executive director of America First Legal and former counselor to the U.S. Attorney General, told NR.

“The big picture is its blatantly illegal, it’s unconstitutional, it has to get stopped, and if the courts don’t stop this now, the executive has unlimited power in the immigration space that no one will be able to stop.”

America First Legal and the state of Texas are challenging Biden’s CHNV parole program for illegal immigrants from Cuba, Haiti, Nicaragua, and Venezuela. A federal judge upheld the program in March because Texas failed to demonstrate how the humanitarian parole harmed the state, citing lower border crossings from those nations since the program was established.

Senator Marsha Blackburn (R., Tenn.) sent a letter to Biden on Wednesday demanding he reverse course.

“If implemented, this ‘Parole in Place’ policy would be plainly unconstitutional. As you well know, the Constitution vests the executive with the power to enforce our immigration laws, not to craft them unilaterally. Specifically, the Constitution states that the President ‘shall take care that the laws be faithfully executed,” Blackburn wrote in the letter, which was obtained by National Review.

“If you move forward with implementing this disastrous proposal that alters the legal status of hundreds of thousands of migrants without congressional approval, you would be flouting congressional authority in direct contravention of the Constitution’s separation of powers,” she added.

Biden signed an executive order earlier this month designed to limit the record numbers of illegal immigrants claiming asylum in the U.S., a move that appeared to signal a willingness to get tougher on the border.

“Don’t believe the lie that Joe Biden cares about securing the border. His fake ‘border security’ executive order is nothing more than a messaging ploy for the propagandists in the media to push ahead of the November election,” Senator Ted Cruz (R., Texas) said in a statement provided to NR.

“Offering mass amnesty will incentivize more illegal aliens to cross the border and will exacerbate the pain and suffering of the Americans that the Biden administration has left behind,” Cruz added.

The Biden administration is also using its limited parole authority for other immigration measures such as catch-and-release, an enforcement policy of letting illegal immigrants into the U.S. as they await immigration court hearings, and the CBP One mobile application allowing illegal immigrants to schedule appointments at ports of entry.

“So, opening up parole-in-place to mass immigration is, frankly I think, counter to statute. it is counter to congressional intent and there should be legal challenges. The question is: Who is going to have the ability to challenge that? We’ll have to wait until this is ultimately announced and then we’ll see how the challenges form. But I think a legal challenge is 100 percent warranted and should come fairly quickly,” Heritage Foundation visiting fellow Joe Edlow told reporters on Tuesday. He was previously the Acting Director of U.S. Citizenship and Immigration Services (USCIS).

Biden celebrated his executive order at an event to mark the twelfth anniversary of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program for illegal immigrants who arrived to the U.S. as young children.

“The Biden Administration is making a political statement more than a serious legal attempt to provide amnesty to illegal aliens. We know this because then-President Obama already tried a similar program for both children brought by illegal parents (DACA) and parents of citizens (DAPA). Both were enjoined by Federal courts for both procedural Administrative Procedure Act violations and serious concerns regarding the legality of the programs as implemented,” Numbers USA senior legal analyst Jared Culver told NR.

Constitutional law professor Josh Blackman also believes the legal challenges to Biden’s new program will resemble DACA and DAPA.

“The Administration has announced that applications will be reviewed on a ‘case-by-case’ basis. However, the litigation over DACA demonstrates that this review process is basically a rubber-stamp, and applications are not denied for discretionary reasons. This policy will likely be challenged in court along similar grounds as DACA and DAPA,” Blackman told NR.

DAPA was rescinded by the Trump administration after a split 4-4 Supreme Court ruling preserved a lower court’s preliminary injunction halting DAPA and DACA. The state of Texas was at the forefront of an effort by over two-dozen states to challenge the two executive actions on the grounds that the Obama administration had violated the Constitutional requirement that the president “take care” to see that laws passed by Congress are faithfully executed.

DACA continues to face legal challenges, although it has survived up to this point. The Supreme Court ruled in 2020 the Department of Homeland Security’s (DHS) attempt to rescind DACA violated the Administrative Procedure Act, the law governing how agencies enact regulations. But, the decision did not address the legality of DACA itself, or the DHS’s attempt to fortify DACA in 2022.

A district court ruled DACA illegal in 2021, and the Fifth Circuit Court of Appeals upheld the ruling. The district court later ruled against the DHS’s fortification of DACA, and both rulings are being stayed temporarily.

Former president Donald Trump, Biden’s 2024 general election opponent, is promising mass deportations as part of an immigration crackdown if he wins a second term. A recent poll from CBS suggests more than 60 percent of Americans, and over half of hispanics, would support a mass deportation initiative.

The poll is consistent with many others showing widespread disapproval of how Biden is handling the border, given the record numbers of illegal immigrants that have come in the U.S. under Biden’s leadership.