Post by Jennifer M. Chacón, Professor of Law, University of California, Irvine and Edwin A. Heafy, Jr., Visiting Professor of Law, Stanford Law School.

On Monday, 18 April 2016, the United States Supreme Court heard arguments in the case of United States v. Texas. The case raises important questions about the scope of the President’s power to exercise discretion in the enforcement of US immigration law. This post will explore the practical and legal questions that the case raises.

Background

Photo: Marisseay
An estimated 11.3 million immigrants live in the United States without legal authorization. The median length of stay for this group of immigrants is 13 years, and their lives and work are deeply woven into the fabric of life in the United States. But because of their lack of legal status, these individuals experience severe hardships and deprivations, the dimensions of which I have been working with a team of researchers to document in recent and forthcoming work.

Although the unauthorized population numbers in the millions, Congress allocates sufficient funding to deport approximately 400,000 people a year. This funding is intended to cover both those individuals already present and those just arriving. The Executive Branch is charged with deciding how to expend those resources to optimize enforcement of the immigration laws enacted by Congress.

The Obama Administration decided that in order to better prioritize the use of scarce enforcement resources, it would issue formal deferrals of deportation to some subset of the unauthorized population that was low-priority for deportation. This process began in 2012 when then-Secretary of Homeland Security Janet Napolitano announced Deferred Action for Childhood Arrivals (DACA). DACA went into effect shortly thereafter, and has provided a temporary deferral of deportation for more than 600,000 young people living in the US.

Building on this effort, in November 2014, Department Homeland Security (DHS) Secretary Jeh Johnson announced Deferred Action for the Parents of US Citizens and Lawful Permanent Residents (known by the acronym ‘DAPA’ as the program was originally called the Deferred Action for Parental Accountability), and issued a memorandum announcing the details of DAPA, including the full criteria for DAPA eligibility. As the memo explains, DAPA doesn’t bestow lawful immigration status on unauthorized immigrant residents, nor does it provide them with a path to lawful immigration status. It simply provides a temporary and revocable reprieve from deportation. As many as five million immigrants could benefit from this reprieve.

The Lawsuit

The case of United States v. Texas involves efforts on the part of Texas and twenty-five other states to stop DAPA. After DAPA was announced, the states filed a lawsuit in the Southern District of Texas, hoping that the case would land before Federal District Court Judge Andrew Hanen, who was already on the record as a vocal opponent of the Obama Administration’s immigration policies. They succeeded. The States asked Judge Hanen to enjoin―or put a legal hold―on the DAPA program. He did.

Throughout this litigation, Texas and other plaintiff states have argued that DAPA is unlawful because: (1) with DAPA, the Department of Homeland Security announced a new administrative rule without fulfilling the Administrative Procedure Act’s (APA) requirement that substantive rules implementing statutory provisions require a period of public notice and comment; (2) even were this requirement met, DAPA would exceed the scope of the Executive Branch’s power under the APA because DAPA is at odds with the underlying immigration statute; and (3) relatedly, DAPA violates the Constitution because it constitutes a Presidential abdication of the Constitutional duty to ‘take care that the laws are faithfully executed.’ 

Federal District Court Judge Hanen sided with Texas on the first argument and didn’t reach the other two claims. The US government appealed to the Fifth Circuit Court of Appeals, which, by a vote of two to one, agreed with Judge Hanen on the first question and also agreed with the plaintiff States on the second issue. All three questions are now before the Supreme Court. 

The Merits

Community activists rally during an event on DACA and DAPA in Los Angeles (Photo: Nick Ut/AP)
If the Justices reach the merits of the case, they will need to decide the question of whether DAPA required rulemaking. This turns on whether DAPA is a binding substantive rule or a discretionary, interpretive rule. If it’s a binding substantive rule, the Court could find that the APA required a rulemaking procedure that included public notice and comment―something that didn’t happen with DAPA. If, on the other hand, DAPA simply provides interpretive guidance, leaving individual agents with discretion over implementation, then rulemaking isn’t required. This argument was the centerpiece of litigation at the district court, although it has become a more marginal issue before the Supreme Court.

The Obama Administration has consistently taken the position that DAPA simply provides interpretive guidance to agents concerning how to prioritize limited enforcement resources. The DAPA criteria clearly require the exercise of discretion. In addition to verifying that individuals meet concrete requirements concerning length of stay and US citizen or LPR relatives, agents also need to exercise discretion to decide that an individual doesn’t fit within certain categories of enforcement priorities, and even after that, must make a determination that ‘no other factors exist that, in the exercise of discretion, makes the grant of deferred action inappropriate.’ Although Texas has argued that statistics from the previously implemented DACA program suggest that DAPA applications will be rubber-stamped, it’s hard to see how DACA statistics have any bearing on a program that applies to an entirely different class of people. Even if DACA statistics were dispositive, DACA denial rates, while quite low, do not actually suggest rubber-stamping. There’s no reason to think that DAPA will be ‘rubber-stamped’ either.

In outlining discretionary criteria for the deferral of removal of individuals that Congress has allocated no resources to remove, DAPA seems to be a heartland interpretive rule, designed to guide agents in prioritizing administrative enforcement discretion. Although wide-scale, it requires the exercise of case-by-case discretion in the application of enforcement discretion.

But this doesn’t fully resolve the matter, because even if the Supreme Court agrees that DAPA is an interpretive rule, the Court still need to decide whether it’s consistent with the statute, or whether the President has exceeded his statutory and constitutional authority by acting in contravention of the statute. Sensing the weakness in its initial arguments, by the time Texas reached the Supreme Court, its litigation position had evolved to focus more squarely on these arguments. For a fascinating discussion of the evolution of Texas’s litigation position, see Anil Kalhan’s brilliant ‘Strange Career of United States v. Texas.’

In response to questions during the 18 April arguments, Texas Solicitor General Scott Keller conceded that ‘given that they are removing 400,000 people a year, we admit that they could do a forbearance of removal.’ The new lynchpin of Texas’s argument, drawing on Judge Smith’s opinion in the 5th Circuit opinion, was that the administration was not simply deferring deportation―which Texas now concedes is permissible―but was instead bestowing ‘lawful presence,’ thereby making legal what Congress has defined as illegal.  

In litigation, Texas described ‘lawful presence’ as a bundle of legal rights granted by DAPA: namely, work authorization and eligibility for Social Security and Medicaid. They argued that this bestowal of ‘lawful presence’ is beyond the scope of the Executive’s authority under immigration law and the Constitution. They point to the DAPA memo, which contains a line that states: ‘for a specified period of time, an individual is permitted to be lawfully present in the United States.’ If the President is granting legal status to individuals who were statutorily designated to lack such status, that could mean not only that DAPA was impermissible under the APA, but also that the President had exceeded his constitutional authority in authorizing DAPA.

But there are problems with this revised argument, too. First, deferred action is not a grant of lawful immigration status. As Kalhan has noted elsewhere, ‘[w]hen individuals receive a form I-797 providing notice of deferred action, [that form] expressly tells them that “deferred action is an exercise of prosecutorial discretion” that “does not confer or alter any immigration status.”’ That’s probably why Solicitor General Verrilli stated in arguments that striking the phrase about ‘lawful presence’ from the DAPA memo would have no legal effect. DAPA doesn’t effectuate a conversion of illegal status into legal status.

Second, any substantive benefits that flow from deferred action aren’t a product of DAPA, but rather, the product of a series of statutory and regulatory provisions that all predate DAPA by 17 years or more. The relevant statutes were enacted by Congress and the interpretive rules in question were the product of notice and comment rulemaking and were not even challenged by Texas in this lawsuit.

Take the example of employment authorization. The I-797 form issued with deferred action status clearly states that the form ‘does not constitute employment authorization.’ Employment authorization requires a separate application. It can be issued to deferred action designees pursuant to statutory and regulatory authority under 8 U.S.C. § 1324a. According to that statute and the rules implementing it―rules which were themselves the product of notice and comment rulemaking during the administration of President Ronald Reagan―work authorization can be granted by the Department of Homeland Security Secretary to deferred action designees. But Texas never challenged that statute or regulation. If the work authorization regulation is the real problem then, as Justices Kagan and Kennedy suggested in oral argument, the DAPA lawsuit seems misdirected.

The same is true for the other benefits like Social Security and Medicaid, which are also attacked as the fruits of unconstitutional grants of ‘lawful status’ in the Texas briefs. It’s true that existing regulations―in this case, regulations issued in 1996―interpreted the 1996 Personal Responsibility and Work Opportunity Reconciliation Act to extend Social Security benefits to recipients of deferred action. And as Marty Lederman notes, ‘in 1997, with full knowledge of the rule’s scope, Congress amended section 1611 to include Medicare and Railroad Retirement benefits, in addition to Title II Social Security benefits.’ These statutes and regulations are not the products of DAPA at all.

If these rules are erroneous, they must be erroneous not just as to DAPA recipients, but also as to DACA recipients and―as Solicitor General Verrilli pointed out in argument―literally millions of other noncitizens who have been granted comparable deferred action over the past thirty years. But these rules have been properly enacted and Congressional appears to have acquiesced to them. They are also not challenged in this lawsuit, and should not be the basis of a merits ruling against the DAPA program.

Standing?

Supporters of immigration reform protest outside the US Supreme Court on 20 November 2015 in Washington, DC (Photo: Win McNamee)
Before even reaching the substance of the legal argument, the Court has to agree that the plaintiff States have standing to sue the Obama Administration in Federal Court. To do so, the States must establish that they have suffered an injury as a result of DAPA and that the Court can grant relief that will redress this injury. Texas argues that it has standing because it subsidizes the issuance of driver’s licenses and Texas law that authorizes individuals with grants of deferred action to obtain driver’s licenses. Since DAPA significantly expands the pool of individuals with deferred action, Texas argues that DAPA will cost the state a lot of money and enjoining DAPA will stop those costs from accumulating.

Although both the District Court and the Fifth Circuit Court of Appeals accepted this argument as a basis for standing, the Supreme Court might be more skeptical. Texas’s injury stems from the costs of its own choices both to subsidize driver’s licenses and to issue them to deferred action designees. Some members of the Court, and Justice Roberts in particular, are often skeptical of standing claims based on self-imposed monetary harms. Such harms may seem to some Justices a particularly weak basis for standing where they are the collateral effect of a federal law that does not even target the States directly.

But the standing problems may run deeper still. During argument, Thomas Saenz― who argued for the Mexican American Legal Defense and Education Fund on behalf of three plaintiffs who, but for the injunction, would have DAPA―pointed out that Texas is no longer contesting that the Administration can ‘forebear’ deportations. Texas is just arguing that DAPA does more than defer action, and in fact bestows a form of ‘lawful presence’ in the form of a bundle of other benefits. But Texas’s driver’s license costs are incurred because of the combination of Texas law and the federal government’s decision to defer action in particular cases. Texas appears to be conceding DHS has the authority to defer action, so it is not clear how Texas’s harms would be redressed by a Court’s injunction of the purported ‘lawful status’ grants by DAPA to which the state now objects. 

Conclusion

At least four Justices―Breyer, Ginsberg, Kagan, and Sotomayor―seem likely to side with the US government on all counts. If Kennedy, Roberts, or both are persuaded by the US on standing or the merits, the DAPA program might well be greenlighted, giving millions of noncitizens temporary breathing space. If the four more liberal justices stand alone, however, a 4-4 decision would affirm the 5th Circuit opinion, and the program would never have a chance to go into effect under President Obama.  

DAPA is not a long-term solution to the problems created by U.S. immigration laws and policy. I’ve noted elsewhere the questions raised by the proliferation of liminal statuses generated by programs like DAPA. At the same time, in this moment, DAPA allows the Administration to bridge the gap between enforcement resources and enforcement realities in a way that’s both humane and consistent with rule of law values. United States v. Texas is therefore a very significant case, and its outcome will have very substantial effects upon the lives of millions of people.

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How to cite this blog post (Harvard style):

Chacón, J. (2016) United States v. Texas: After the Arguments. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/04/united-states-v (Accessed [date]).