A New Approach to the Texas v. United States Immigration Case: Discretion, Dispensation, Suspension, and Pardon—The Four Horsemen of Article II

President Barack Obama has worked with Congress to enact certain policies, such as his economic stimulus package and Obamacare, but he also has often used executive orders or administrative decrees to create law. For instance, unable to persuade Congress to pass the DREAM Act, the President worked through the Department of Homeland Security to implement the act by an administrative memorandum expressly modeled on the bill’s provisions. In a case now before the Supreme Court, Texas and other states have challenged the legality of this DHS policy. The Court ordered the parties to brief and address the additional question of whether the DHS memorandum violates the Take Care Clause, which requires the President to enforce the law and grants him no power to dispense with or suspend it. Given the clause’s background, neither a dispensation nor a suspension authority can be deemed an inherent part of the executive power that Article II vests in the President.

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