On November 20 and 21, 2014, President Barack Obama announced a series of administrative reforms of immigration policy, collectively called the Immigration Accountability Executive Action. The centerpiece of these reforms is an expansion of the current Deferred Action for Childhood Arrivals (DACA) initiative and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative for the parents of U.S citizens and lawful permanent residents who meet certain criteria. Together, these initiatives could provide as many as 5 million immigrants with temporary relief from deportation. Moreover, DAPA and expanded DACA is expected not only to keep families united, but also to increase U.S. gross domestic product, increase tax revenue, and raise wages.
Like the original DACA initiative, both expanded DACA and DAPA derive from the executive branch’s authority to exercise discretion in the prosecution and enforcement of immigration cases. In both instances, the President has authorized the Department of Homeland Security (DHS) to defer for three years the deportation of qualified individuals who pose no threat to the United States in the hope that Congress will finally undertake more permanent, comprehensive immigration reform.
Within hours of the announcement, notorious Maricopa County, Arizona Sheriff Joe Arpaio challenged the President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. Shortly thereafter, representatives of 17 states filed a similar case in a Brownsville, Texas, federal court, with 9 other states later joining the lawsuit, in a case named Texas v. United States. On the other hand, a broad spectrum of supporters—including 15 states and the District of Columbia—filed “friend-of-the-court” briefs supporting the President’s plan.
The U.S. Government opposed both lawsuits on the grounds that the President’s actions were a lawful use of prosecutorial discretion, and that the plaintiffs lacked “standing” to bring their cases, since plaintiffs were not harmed. Both arguments are supported by a wide range of law professors and experts.
The Washington, D.C. federal court promptly dismissed Sheriff Arpaio’s lawsuit. That decision was upheld unanimously by a three-judge panel of the D.C. Circuit Court of Appeals on August 14, 2015. Sheriff Arpaio asked the Supreme Court to review the case, but on January 19, 2016, the Supreme Court denied that request.
Separately, the Texas federal court preliminarily blocked, on procedural grounds, the President’s DAPA and expanded DACA initiatives (but not original DACA) on February 16, 2015. The Department of Justice appealed this order, and arguments were heard on July 10, 2015. On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the lower court’s ruling in a 2-1 decision. The following day, the Department of Justice announced its intention to seek Supreme Court review of the Fifth Circuit’s decision. On January 19, 2016, the Supreme Court granted certiorari (meaning, it agreed to take the case) and will likely hear arguments in April, with a decision being announced in late June 2016.
At the center of these cases is a policy dispute—Texas, 25 other states, and an Arizona sheriff disagree with the President’s policy on how the immigration agencies should use their limited enforcement resources. These cases are more political diatribe than legal argument, and are unlikely to succeed in the long run. Understanding the procedural steps and the nature of the arguments helps to put the cases in perspective.
Both lawsuits seek to “enjoin,” meaning to block implementation of, DAPA and expanded DACA. They argue that the executive actions violate the “Take Care” clause of the Constitution because the President has allegedly changed the law rather than “tak[ing] care that the laws be faithfully executed.” Initially, both lawsuits sought a “preliminary injunction”—a temporary block during the life of the lawsuit—which is an “extraordinary remedy.” To grant a “preliminary injunction,” the court must find that four factors exist—(1) the challenger is likely to succeed on the merits, (2) the challenger is likely to suffer “irreparable harm” without the injunction, (3) the “balance of equities” supports the challenger, and (4) an injunction is in the “public interest.”
Sheriff Arpaio’s complaint alleged harms based on crime. Specifically, Arpaio’s theory was that DACA and DAPA will cause a “flood” of “millions more illegal aliens,” and in turn a “crime wave”—because many “illegal aliens…are repeat offenders”—thus requiring additional expenditures of funds and resources by his law enforcement office. This argument is flatly contradicted by empirical evidence that higher immigration is associated with lower rates of crime.
The states’ complaint similarly argued that expanded DACA and DAPA will trigger a “wave” of immigration—even larger than the alleged “flood” of Central American families to the United States caused by DACA (ignoring the substantial evidence that fear of persecution and violence is driving Central Americans from their homes). The states also alleged that this wave will “increase human trafficking” by drug cartels and thus “exacerbate the risks and dangers imposed on [states] by organized crime.” In addition, the states alleged broader harms from the expenditures on law enforcement, health care, education, processing professional licenses, and other benefits.
Dismissal of Sheriff Arpaio’s Lawsuit (Arpaio v. Obama)
Washington, D.C. federal judge Beryl A. Howell dismissed Arpaio’s lawsuit one day after holding a hearing on it. The court held that:
The plaintiff lacks “standing,” or legal capacity, to file his lawsuit. The Court found it was “not apparent exactly” what injury plaintiff had suffered because he had “no legal authority to enforce the immigration laws.”
Any harms the plaintiff did suffer were “speculative.” “The decision for any individual to migrate is a complex decision with multiple factors, including factors entirely outside the United States’ control, such as social, economic and political strife in a foreign country.” Thus, the Court found it speculative that the President’s deferred action initiatives—which do not apply to future immigrants—would result in immigrants unlawfully entering Maricopa County, Arizona or elsewhere in the United States. Indeed, DHS’ policies that focus enforcement resources on those who have committed crimes may actually “end up helping” the plaintiff.
Additionally, the Court held that expanded DACA and DAPA do not “amount to unlawful legislation and/or rulemaking,” because Congress delegated authority to DHS to establish enforcement priorities, which DHS is exercising to target individuals who pose the greatest threat to the United States.
Arpaio appealed the dismissal of his case to the higher federal court, the D.C. Circuit Court of Appeals. On August 14, 2015, the three-judge panel unanimously upheld the lower court’s ruling that Arpaio lacked standing to bring suit. In November, Arpaio sought review at the Supreme Court, but in January the Court denied that request.
Preliminary Injunction in States’ Lawsuit (Texas v. United States)
On February 16, 2015, Brownsville, Texas federal judge Andrew Hanen, of the U.S. District Court for the Southern District of Texas, temporarily enjoined DAPA and the planned expansion of DACA pending a higher court’s contrary order or a trial on the merits. Highlights of the court’s reasoning include:
Texas has standing to bring this lawsuit because DAPA and expanded DACA will create a new class of individuals eligible to apply for state-subsidized driver’s licenses, which would impose additional processing and issuance costs on the state. The court did not address the offsetting economic benefits that states also would realize from DAPA and expanded DACA, including higher wages, increased tax revenue, and new jobs. The court rejected other standing arguments by the plaintiffs, namely, that DAPA would impose indirect costs on states such as for public education and uncompensated medical care.
Judge Hanen based his ruling on narrow procedural grounds—that the Government did not comply with certain technical requirements under the Administrative Procedure Act (APA), including notice-and-comment rulemaking.
In reaching this conclusion, Judge Hanen found DAPA and expanded DACA to be substantive rules subject to notice-and-comment procedures, rather than general statements of policy. However, as DHS pointed out, the expanded DACA and DAPA initiatives are policies, under which DHS must decide on a case-by-case basis whether to grant a particular individual’s request. DHS national procedures for officers reviewing DACA claims specifically allow discretionary denials. The procedures provide a form with a box permitting denials solely on the basis of discretion—even where eligibility guidelines are met, as well as another box permitting denial where a requestor “do[es] not warrant a favorable exercise of prosecutorial discretion because of national security or public safety concerns.”
The ruling did not address the constitutionality of President Obama’s initiatives. Indeed, the decision affirms the Secretary of Homeland Security’s authority to set the Department’s enforcement priorities and to marshal its resources accordingly.
The court explicitly did not enjoin original DACA. DHS reinforced this point, reminding that “individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012.”
Regarding the public interest, the court found the cost of issuing drivers’ licenses and other benefits to prospective deferred action beneficiaries to be decisive. This is contrary to evidence that President Obama’s policy helps, not harms, the public interest, as an amicus brief by the American Immigration Council and others argued. Conversely, halting President Obama’s policy will harm the economy and affected individuals, who have significant ties in the United States.
Fifth Circuit Appeal in States’ Lawsuit (Texas v. United States)
The government subsequently appealed the lower court’s decision granting the preliminary injunction to the higher federal court, the Fifth Circuit Court of Appeals. In addition, the government asked Judge Hanen to “stay” the injunction (i.e., stop the injunction from being in effect), and then made the same request—on an emergency basis—to the Fifth Circuit when Judge Hanen did not rule quickly.
A broad spectrum of states, municipalities, law enforcement agencies, legislators, and other organizations supported the federal government’s appeal with “friend of the court” or amici briefs. These amici include 15 states and the District of Columbia, 73 U.S. mayors and county officials (led by New York, Los Angeles, Chicago, and Houston ), over 30 heads of local law enforcement agencies, 181 U.S. Representatives, four U.S. Senators, over 150 civil rights, labor, and immigrants’ rights groups, 19 faith organizations, organizations representing educators and children’s advocates, and businesses and trade associations. The cities supporting the President’s program contain more undocumented immigrants than the states opposing it.
On May 26, 2015, a divided panel of the Fifth Circuit Court of Appeals denied the request for an emergency stay of the preliminary injunction, with the result that the hold on implementation of DAPA and expanded DACA remained in place while the Fifth Circuit considered the appeal of the preliminary injunction itself. In his dissenting opinion, Judge Stephen A. Higginson called out the “political nature of this dispute” and argued that the courts have no role to play in reviewing the Administration’s policy choices.
On November 9, 2015, a divided panel of the Fifth Circuit Court of Appeals upheld the district court’s order granting the preliminary injunction. The majority accepted the lower court’s findings that Texas has standing to bring this lawsuit based on the additional costs it would incur to issue driver’s licenses to beneficiaries of expanded DACA and DAPA. The court acknowledged that judicial review is unavailable under the APA where a matter is committed to agency discretion and that the government’s immigration enforcement priorities fall squarely within this category; nonetheless, the majority also found that the plaintiff states were likely to prevail on their claim that the federal government should have pursued notice-and-comment rulemaking because DAPA and expanded DACA determinations are non-discretionary. In addition, the majority held that the new deferred action initiatives are arbitrary and capricious because the federal government did not have authority to promulgate them under the Immigration and Nationality Act.
In her dissenting opinion, Judge Carolyn D. King characterized the majority’s opinion as a “mistake” that “has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal.” Other notable aspects of her lengthy opinion included:
Deferred action decisions, which are made on a case-by-case basis pursuant to the proposed initiatives, are “quintessential exercises of prosecutorial discretion.” Because federal courts cannot review matters involving prosecutorial discretion, the case should be dismissed.
The majority’s “breathtaking expansion of state standing” would allow potentially limitless state intrusion into federal policy making.
The memorandum announcing DAPA and expanded DACA is “a general statement of policy” and thus exempt from notice-and-comment rulemaking under the APA.
DAPA does not violate any provision of the Immigration and Nationality Act and “appears to further DHS’s mission of ‘[e]stablishing national immigration enforcement policies and priorities.’”
Current Status of the States’ Case
On January 19, 2016, the Supreme Court announced it will review the Fifth Circuit’s decision. This prompt action by the Supreme Court means the Justices will hear the case this spring—likely with oral arguments being held in April—and issue a decision before the term ends in June 2016. If that happens, it would be possible for the immigration agencies to implement DAPA and expanded DACA before the current Administration leaves office.
This case represents precisely the type of high-stakes conflict where review by the country’s highest court is crucial. Texas and 25 other states have filed suit in an attempt to prevent implementation of the President’s policy on immigration. Fifteen states and the District of Columbia, plus 73 U.S. mayors and county officials support the Administration’s policies. Giving a single state the power to upend a nationwide federal program that is supported by many other states is a dangerous precedent.
This case also represents a departure from past precedent. Since at least 1956, every U.S. President has granted temporary immigration relief to one or more groups in need of assistance. The Supreme Court has repeatedly held that it is well within the executive’s authority to decide how and when to enforce the law and to exercise prosecutorial discretion. Plain and simple, the Fifth Circuit’s decision is out of line with past precedent and should be reversed.