Immigration Topics

By: Robert Gard

 

President Obama’s Executive Actions — Status of Implementation & Political Infighting — Part 10 — Obama Administration Loses at 5th Circuit, and Supreme Court Agrees to Hear Appeal to Save Expanded DACA and DAPA Programs

Two key pieces (expanded “DACA” without age limits and “DAPA”) of President Obama’s Executive Actions Program, announced on November 20, 2014, were scheduled to go into effect on February 18th and May 26th of this 2015, respectively; but legal and political hurdles to implementation remain. On November 20, 2014, President Obama announced his “immigration accountability executive action,” which includes a series of measures that are first steps towards common-sense reforms to an outdated immigration system.

The series of executive actions presented by the administration range from new temporary immigration protections for many unauthorized parents of U.S. citizens and lawful permanent residents to highly technical regulatory proposals to fix outdated visa provisions. The USCIS website has a DACA page/link, where the public can sign up for emailed instructions, updates and further developments: http://www.uscis.gov/immigration action

As of the date of my last article on these issues (December 2014), US District Court Judge Hanen (in Brownsville, Texas area) had issued a 123 page decision on February 16, 2014, putting in place a preliminary injunction temporarily blocking implementation of President Obama’s new deferred action initiatives (expanded DACA and DAPA), while pointedly leaving the original 2012 version of DACA untouched and undisturbed. Judge Hanen indicated that his preliminary injunction was for the purpose of providing time for a coalition of 26 states to pursue a lawsuit seeking a permanent injunction against the President’s new deferred action initiatives.

The Obama administration appealed to the 5th Circuit Court of Appeals, and, ultimately, the 5th Circuit upheld Judge Hanen’s District Court injunction halting implementation of the new rules in a decision dated November 9, 2015, and the Justice Department then asked the U.S. Supreme Court to rule on the issues involving the President’s use of Executive Authority (applied for a Writ of Certiorari.) Some court watchers were surprised to see the Supreme Court direct both sides to address whether the President’s actions violated the “Take Care” Clause of the Constitution, which states that the President must “take Care that the Laws be faithfully executed.” Neither the Texas district court nor the Fifth Circuit Court of Appeals addressed this legal claim; instead, the lower courts based their decisions on the government’s alleged failure to comply with certain technical requirements under the Administrative Procedure Act.

The Court’s request for additional briefing on this issue suggests that it wants to resolve all the issues in the case, rather than leaving a loophole that could be the basis for a future decision by the district court, which could further delay the implementation of expanded DACA and DAPA. “Each day that the court delays a ruling, it tears apart thousands of families and forces millions more to succumb to uncertainty. There are some who relish playing politics with the courts and people’s lives and are putting American values on hold,” said Angelica Salas, executive director of the Coalition for Humane Immigrant Rights of Los Angeles.

In accepting United States v. Texas, the justices asked the parties to answer four questions. Each has important implications. And the deeper you go in the list of questions, the broader those implications are.

First, do the states have “standing”? That is, do Texas et al. have the right to sue in the first place? One way to think about this is whether the states would be harmed if the feds let more people stay, and whether, even if so, the courts are the right place to work that out. Before a federal court can even address the merits of a case, the Constitution requires the plaintiff to demonstrate “standing.”

This means the plaintiff has to show that the defendant’s actions will cause the plaintiff concrete harm. Texas’s lawyers have devised a clever argument: Deferred action results in temporary “lawful presence;” Texas law makes foreign nationals who are “lawfully present” eligible for driver’s licenses; and the application fee for a Texas driver’s license does not cover the full processing cost. Therefore deferred action will cost Texas money.

The lower courts answered yes to both questions. But if the Supreme Court decides the answer is no, the administration wins before getting to the substance of the case. So far, the winning argument has been that since the states issue drivers’ licenses and provide other services to lawful residents, more residents would harm their budgets. This relies on the Supreme Court’s ruling in Massachusetts v. EPA, which said the states are “not normal litigants” – they have a lower burden of proof to get into court than an individual might – and could sue the federal government when it caused harm. Relying on that precedent is a bit ironic:

Conservatives normally hate Massachusetts v. EPA, since the states there were demanding more national regulation, not less. The largest (of many) flaws in this argument is that no one is forcing Texas to issue driver’s licenses to deferred action recipients; that’s the state’s choice. So Texas has to argue in effect that just being forced to choose between incurring costs and changing its policy is enough to give it standing — even if the policy change is one that it actually prefers.

The administration, for its part, says that the guidelines issued by DHS don’t give any particular alien any particular rights, but only advice to immigration officials about how to use their existing discretion. Thus, there’s nothing to sue about here in the first place. And even if there is, states don’t have to subsidize licenses and the like. They can change their law: Why give them credit for injuries they caused themselves, just so they can sue? Anyway, immigration is a power reserved exclusively to the federal government by the Constitution. To allow states into court over incidental costs in such a case, this argument goes, would undermine Article VI, which states that the Constitution and federal law trump state law and even state constitutions. All this transcends immigration. Every time the IRS interprets the tax code in a way that favors the taxpayer, any state that chooses to base its own income tax on federal taxable income loses revenue.

The state could avoid that result by changing its law, but under Texas’s theory that doesn’t matter. Accepting Texas’s radical theory of standing would be a recipe for paralysis. No one state should be empowered to thwart the federal government’s nationwide policy decisions so easily. And that is why the consequences of the Court’s final disposition will be so profound.

Second, was the DHS guidance legally issued? The Administrative Procedure Act (“APA”) of 1946 aimed to increase transparency and public input. Among other things, APA requires a “notice and comment” process: The government must publish notice that proposed rulemaking is underway, allow for public comment, and then respond to those comments as it writes a final rule. DHS did none of this. The administration says, effectively: ‘No kidding! It’s not a regulation. It’s guidance.’As such it will be applied to discretionary decisions made case by case within existing regulations. The states argue that in practice, at least, the guidance is a regulation – it changes the program itself, not just the cases within the program. So far, the courts have agreed.

Third, is the DHS guidance legal? Let’s say it was properly issued. If so, did the administration have the discretion to enact it, based on the Immigration and Naturalization Act? The district court did not directly answer this, but Judge Andrew Hanen clearly thought DHS had gone too far. (Immigration advocates think Hanen’s district was chosen precisely because his opinions on this were no secret.) So did the 5th Circuit. It said the plan “would affirmatively confer ‘lawful presence’ and associated benefits” on a group not identified in current law. Nor did the president’s actions respect the INA’s “intricate process” for granting people “a lawful immigration classification” based on their children’s legal status.

On the other hand, Congress’s annual appropriation for dealing with “removable aliens” amounts to 3.5 percent of the amount needed to actually remove them. The dissenting judge in the 5th Circuit panel argued that DHS therefore had to set priorities; these “are quintessential exercises of prosecutorial discretion.” The administration, not surprisingly, agreed fully, saying that many presidents have acted in similar ways and that courts traditionally give presidents wide deference in such cases — including in 2012’s Arizona v. United States.

Fourth: Whether the guidance violates the “Take Care Clause” of the Constitution, Article II, section 3?

This one is a wild card: The justices added it themselves (it was NOT raised by either party to the appeal.) Why? After all, the fourth question seems to repeat the third. The Take Care clause simply says that the president “shall take care that the laws be faithfully executed.” So if the DHS guidance does not “faithfully” follow the Immigration and Naturalization Act, the administration has already lost the case. Concluding that Obama is guilty of violating the Constitution instead of simply overestimating his statutory authority makes for more dramatic headlines but the same practical outcome. As long as Congress continues to write vague laws, determining whether execution is “faithful” will still be case-specific.

Courts will still have to decide whether a given administrative action fits into the shape of the particular hole legislators left in the statute. There’s a lot involved in the Texas case, then. Who gets to sue, when? What counts as a regulation? And when does statutory misinterpretation bleed into Constitutional malfeasance? All of the answers could have an important impact on presidential power – not just for Obama, but for his successors. The stakes are momentous, and they go far beyond immigration.

Oral arguments in the case will likely be scheduled for April 2016. The Court will issue a decision before its current term ends in June 2016. For the sake of the immigrant families whose lives are riding on this decision, let’s hope that the Court makes clear that President Obama, like every President before him dating back to Eisenhower, has the authority to take executive action on immigration. The federal government isn’t going to deport all 11 million undocumented immigrants living in the United States, no matter who wins this year’s election. Given that reality, it’s vital that the president retain the leeway to set sensible priorities about how to tailor the law enforcememt response.

COPYRIGHT BY AUTHOR — 2016

This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation.