On Monday, the Supreme Court will hear the government’s challenge to an injunction issued in Texas against Obama’s deferred deportation executive action. This action, announced in November 2014, would allow illegal immigrants to remain in the United States under two criteria: (1) they have children here and (2) they have been in the US at least since January 2010. They could apply for a special program that allows them to remain here for three years; in short, a pathway to legal status.
The government is contesting the lower court rulings on three grounds. The first is standing. The government argues that Texas and the other states that joined the lawsuit cannot challenge a decision by the executive branch of the Federal government. However, in order to get an injunction in federal court it requires a showing of injury. The Fifth Circuit upheld the lower court’s decision based on the premise that Texas may incur additional costs by issuing driver’s licenses to those who benefit under the program.
This is where some confusion enters the case and the fact that standing is an issue indicates that it may be a subject of some contention and a way for the Court to resolve the issue without actually definitively resolving the issue, as some argue. That is, they can simply say Texas has no standing because they cannot show an injury, just a potential injury. The lower court ruled that the evidence suggested Texas would be injured which is why they issued the injunction in the first place.
Assuming Texas survives the first hurdle, we then get to the gist of the case, but before discussing that, there is another side issue. The executive action by Obama is in the form of a directive to DHS regarding enforcement of deportation proceedings. Normally, when a federal agency like DHS promulgates rules and regulations, they are required to notify the public about the change and allow for an adequate period of public comment before the rules are published in the Federal Register. The Administrative Procedures Act is the law controlling here. The administration did not do so in this case.
The administration could prevail on this point if the order was a tentative policy statement indicating how DHS would handle future deportation proceedings. The District Court determined that there was nothing tentative about the action since the executive action itself specified five criteria in determining deferred action. In short, these were not rules promulgated by DHS but a directive to DHS as to how they would do their job in this area. If the Court determines otherwise, then the APA would be controlling, but it would be a delaying tactic only that could take months, although one suspects the administration is prepared to fast track such procedures.
Now for the main thrust of the case: prosecutorial discretion. This asserts that the Executive branch is afforded some latitude on how they will enforce a law based on priorities. In the classic case involving a criminal action, the Federal government often prioritizes certain crimes or offenders over others in order to make the best use of appropriated funds. The administration argues that the President, through his executive action, is simply using such discretion.
It is strange twist of logic the government is using here. To be fair, Republican administrations have also used this argument at times in the past, but never to this degree. Their main argument is that by the lower courts freezing the executive action, they are effectively hindering the administration’s ability to enforce immigration laws. In other words, by not enforcing the law, the administration is enforcing the law.
But the argument cuts deeper than that. In fact, Congress has placed limits on the Executive’s discretionary authority. The 1996 Illegal Immigration Reform and Immigration Relief Act states that Congress’ intent is “to prevent delay in the removal of illegal aliens.” The government counters that federal immigration law captures an extremely large potential population of people, but Congress does not appropriate enough money to deport all these people. Therefore, they must be selective (i.e., use discretion) in who they deport. That lack of appropriated funds, the government contends, is tacit approval that Congress is granting discretion.
The opponents counter that prosecutorial discretion is an acceptable legal tenet in this context, but on a case-by-case basis, rather than a sweeping policy change that captures a potential 4 million people. The breadth of the order and the fact it is more an order rather than a change in policy to be implemented by DHS was never intended by Congress. If the latter were true, then the APA would apply as was noted earlier. Therefore, this is clearly a de facto attempt by the Obama administration to rewrite immigration law. Categorical exemptions from immigration laws have been used in the past, but never to this degree.
If the administration is to prevail, it has been noted that the many pages of immigration law would apply to a mere 13% of violators. Is this what Congress intended- to only have deportation proceedings against 13% of the illegal population? One seriously doubts that was their intention.
The closest analogy we have to this scenario is the “Family Fairness” policy adopted by the Reagan administration and furthered by the first Bush administration. Under IRCA, Reagan’s signature immigration bill, it granted effective amnesty for up to 3 million illegal aliens. However, it excluded non-qualifying spouses and children. Reagan issued a blanket deferral that aided an approximate 1.5 million people. Bush later expanded the deferred deportation order to cover a smaller amount of people. But the Obama administration is missing an important point when they cite these cases- those actions by the Reagan and Bush administrations were specifically authorized under pre-existing laws and regulations, not by an executive action.
Furthermore, there is some controversy whether prosecutorial discretion even applies to immigration and deportation proceedings. Deportation proceedings are civil, not criminal actions. That aside, the administration notes that the action would allow those who benefit under the action to legally work in the country. That would then infer certain benefits such as Social Security, Medicare and the Earned Income Tax Credit, among others. In effect, the administration is arguing for the wholesale negation of a law rather than using discretion in individual cases.
Which brings us to a final area which the Court, not the government nor the state of Texas brought up: does Obama’s action rise to the level of a Constitutional violation under the Take Care Clause? Here, a very old case from 1838 may be important- Kendall vs. United States ex rel. Stokes. Obviously, Obama’s rationale is as old as that which was used in 1838. In the case, the Court handed a rebuke to the Van Buren administration when they stated: “To intend that the obligation imposed on the President to see that the laws are faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and entirely inadmissible.” In short, in the absence of a clear directive from Congress, the Executive cannot just decide not to enforce laws, especially those with which they disagree.
Presidents do not get to rewrite laws simply because they do not get their way. This action was implied and threatened as early as May 2014 when it became apparent that the House would not take up the Senate’s immigration reform effort (a/k/a, the Gang of Eight bill). No one denies that our immigration laws need reforming, but until that occurs enforcement of existing laws must be carried out, even by an unwilling administration. A President cannot and should not arbitrarily decide which laws they will or will not enforce.
Impatience with the process or political obstruction is no excuse to circumvent the representatives of the people, that is- Congress- in writing laws. While it may be true that previous administrations have used this discretion in response to certain “emergencies” (for example, Clinton and Haitian refugees, some refugees from fighting in Central America, etc.), no president has ever considered Congressional inaction on immigration reform an “emergency.”
A 4-4 tie affirms the 5th Circuit decision which upheld the District Court in issuing the injunction. A subsequent administration can then challenge the lower court decision again once there are nine Justices on the Supreme Court. The Court could also remand the case to the Fifth Circuit with guidelines whereupon they would again take up the case based on those guidelines and issue an opinion. Considering that the decision is likely to be announced in late June, there would be precious little time for the Obama administration to implement this policy should the lower court lift the injunction under this scenario. The easy way out for the Court is to apply a technical analysis in one of two ways.
First, they can say that the Fifth Circuit and the District Court erred in issuing the injunction in that Texas had no standing to bring the suit in the first place since they did not suffer a harm or injury. In that instance, Texas could challenge the order in District Court and a trial would be held on whether they did, in fact, suffer a harm. That would effectively lift the injunction, allow Obama to implement the policy, and return the case to the lower District Court. Second, the Court can say that the government violated the Administrative Procedures Act and that the action could not be implemented until the specifics of the APA were carried through. This would be like an administrative injunction in that Obama could not actually implement the deferred deportation proceedings until DHS acted and there was a public comment period. By that time, a new administration may be in the White House.
Either way, expect a plurality decision. There is no way there are five votes on this Court to send Obama a stinging rebuke. Also, the Roberts Court has an uncanny ability to weasel out of the larger Constitutional questions at times (like a ruling on the Take Care Clause) as they illustrated with the Obamacare mandate case (NFIB vs. Sebelius) where Roberts converted the issue into a taxation case.