A three-judge panel of the Fifth Circuit today issued a split decision upholding the Texas judge’s injunction preventing Obama’s executive amnesty program from moving forward. The opinion itself upheld the injunction on fairly arcane (to non-lawyers) legal and procedural grounds; i.e., it did not decide or offer an opinion as to whether the Obama Administrations program was likely unlawful or not. Rather, it invalidated the program because the Administration failed to pass the program through the (mostly pro forma) “notice and comment” rulemaking process as governed by the Administrative Procedures Act – which essentially requires Federal agencies to post proposed new rules in the Federal Register, solicit comment from the public, and ultimately submit a regulatory impact statement and explanation of their decisionmaking procss with the final rule. Once an administrative rule has jumped through these hoops, it is very difficult to get it overturned.
If the Obama administration had submitted their proposed program through the APA notice and comment process from the get go in late 2014, they would be mostly or entirely through the process and the executive amnesty program could, with some aggressive handling, be a finalized rule by now, requiring Texas and the other plaintiffs to prove that the DHS rule in question is not entitled to Chevron deference – a hefty legal hurdle to clear. One wonders, then, why the Obama administration did not just submit the program through notice-and-comment in the first place or at least when the Texas judge issued the initial ruling indicating that their action would be required to pass through notice and comment several months ago.
The answer appears to be that the Administration lacks confidence that the Executive Amnesty program will pass muster even under Chevron deference – if characterized as a rule rather than merely the exercise of prosecutorial discretion. The DAPA program at issue clearly confers benefits on illegal immigrants that are flatly inconsistent with stated Federal law and therefore cannot be construed as a reasonable interpretation of existing immigration law. Thus, the Administration is trying very hard to construe the entire DAPA program merely as a standard issue decision to construe prosecutorial resources and not prosecute certain violations of law because of lack of ability. As the Fifth Circuit noted, the parameters of the DAPA program make that reading untenable:
The Secretary does, nonetheless, have broad enforcement discretion and maintains that deferred action under DAPA – a grant of “lawful presence” and subsequent eligiblity for otherwise unavailable benefits – is a presumptively unreviewable exercise of that discretion. “The general exception to reviewability provided by section 701 (a)(2) for action ‘committed to agency discretion’ remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.” When, however, “an agency does act to enforce, that action itself provides a focus for judicial review, inasumuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.” Chaney, 470 U.S. at 832.
Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision – at least temporarily – not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: it is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.
“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.'” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification. Regardless of whether the Secretary has the authority to offer those incentives for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.
(Emphasis added) (internal citations omitted). This is the crux of the problem for the Administration – the benefits they are trying to provide under the DAPA – including, as we have noted here before, thousands of free dollars in back Earned Income Tax Credits even for illegal aliens who have never filed or paid taxes. This program is not prosecutorial discretion, it is an intentional and cynical boondoggle to illegal aliens that directly contravenes existing federal law.
The Administration now has a difficult choice to make, in terms of its timeline. If it continues to legally press the case that DAPA did not require notice-and-comment rulemaking under the APA, the timeline for potential Supreme Court review of this issue could potentially push implementation of this program into late next year, even assuming the Administration wins before SCOTUS. That would make this a live election issue in 2016 and to the extent that it looks like a competitive race, may well doom the program entirely, especially if a Republican wins. And if they lose at SCOTUS, there is no way the notice-and-comment process could be completed before the end of Obama’s current term.
On the other hand, if they abandon this challenge and undergo notice-and-comment rule making now (conceding the APA issue to the plaintiffs), they will lose several months in that process only to face the very real risk that, as an affirmative rule, DAPA does not pass muster under Chevron deference. In either case, the Fifth Circuit today has made it much more likely that the DAPA program will depend on the sufferance of Obama’s successor, even supposing that it eventually passes muster through the courts.