Third, the states are making a substantive constitutional argument under the Take Care Clause. This claim deserves special note because neither the district court nor the Fifth Circuit found it necessary to rule on it, but the Supreme Court ordered the states and the federal government to brief it anyway. This idea is that by ignoring the expressed will of Congress, DAPA violates the constitutional command that the executive branch “shall take care that the laws be faithfully executed.”

Over the years, the courts have been loath to resolve Take Care Clause challenges, but if the liberal wing of the high court resolves the statutory challenges in the federal government’s favor, it will have no choice but to address the constitutional challenge.

The states’ Take Care claim goes like this: not only is DAPA not authorized by Congress (that’s the substantive APA challenge discussed above), DAPA is in fact directly contrary to the expressed will of Congress. Congress explicitly provided that a U.S. citizen (or lawful permanent resident) child of an illegal alien could not be the basis for legalizing an alien parent’s immigration status until the child turned 21 years of age unless, among other things, the removal of the parent would cause exceptional and extremely unusual hardship to the child.

Congress wanted it to be quite difficult for aliens to leverage U.S.-born children into lawful immigration status. DAPA ignores this policy goal and grants lawful status regardless of the age and hardship restrictions established by Congress in violation of the executive branch duty to take care that the laws of Congress be faithfully executed.