Will 9th Cir. Ruling Under Obama Protect Trump Immigration Order?

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Laura D. Francis

A federal appeals court’s blessing of former President Barack Obama’s program for young, undocumented immigrants could be used to justify immigration actions by President Donald Trump, Judge Alex Kozinski suggested Feb. 2 ( Ariz. Dream Act Coal. v. Brewer , 2017 BL 31932, 9th Cir., No. 15-15307, 2/2/17 ).

A 2016 decision from the U.S. Court of Appeals for the Ninth Circuit didn’t determine whether the deferred action for childhood arrivals program was within the president’s authority, Kozinski said. But if Arizona can’t implement an immigration-related policy because it was preempted by the president’s action, the court will need to accept that such a stance applies regardless of who holds that office, Kozinski said in a dissent to a decision that left the 2016 ruling in place.

With states already filing and joining lawsuits against Trump’s Jan. 27 immigration order, it’s possible that a federal-state showdown over immigration will happen again. The Ninth Circuit itself already is involved in one of those challenges, having denied the Trump administration’s emergency request to overturn a Feb. 3 federal judge’s order that blocked implementation of the executive order. Neither court has yet addressed the merits of the lawsuit.

These “looming conflicts” between the states and Trump “should serve as a stark reminder: Executive power favors the party, or perhaps simply the person, who wields it,” he wrote. “In its haste to find a doctrine that can protect the policies of the present, our circuit should remember the old warning: May all your dreams come true,” Kozinski said.

‘Apples and Oranges.’

But Obama’s authority to implement DACA is different from Trump’s authority to temporarily block refugees and immigrants from certain countries, Stephen Legomsky, a Washington University School of Law professor, told Bloomberg BNA Feb. 3. It’s “simplistic” to assume that approving an exercise of authority on Obama’s part necessarily means that it’s giving a green light to an exercise of a different authority by Trump, just because they both concern immigration, he said.

“It’s apples and oranges,” said Legomsky, who formerly served as chief counsel for U.S. Citizenship and Immigration Services.

The Ninth Circuit decision had to do with whether Arizona could deny driver’s licenses to DACA recipients.

That policy had “two defects": The Immigration and Nationality Act allows the Department of Homeland Security secretary to “authorize a stay” in the U.S. of any alien, and it provides that once that stay is authorized, the alien is considered lawfully present, Legomsky said. That’s what happened with DACA, and the Ninth Circuit determined that Arizona didn’t have the authority to say DACA recipients weren’t in fact lawfully present, he said.

But the state also was granting driver’s licenses to other types of noncitizens who, like DACA recipients, also didn’t have lawful immigration status, Legomsky said. The state never came up with a legitimate reason for that, he said.

Same Powers as Obama

Trump’s immigration orders stem from different sources of authority, Legomsky said. “Trump has exactly the same powers that Obama did” in the realm of immigration, but “each power has to be analyzed on its own terms,” he said.

Trump “clearly” has the authority to block the admission of refugees, Legomsky said. “He also has the power to ban noncitizens from entering the U.S.,” he said. What is “subject to debate” is whether Trump can exercise that authority by discriminating against members of a certain religion, he said.

That may have to be decided in one or more of the various lawsuits that have been filed in the week since the order came out.

But contrary to Kozinski’s dissent, a court’s finding that DACA was a permissible exercise of presidential authority has no bearing on Trump’s overall immigration powers, Legomsky said. “The fact that you can do X doesn’t also mean you can do Y,” he said.

Rather, Kozinski’s “real beef” appears to be DACA itself, Legomsky said.

Judges Diarmuid F. O’Scannlain, Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea and N. Randy Smith joined Kozinski’s dissent. Judge Marsha S. Berzon, a member of the three-judge panel that decided the case last year, wrote a concurrence further justifying that decision in light of Kozinski’s dissent.

The National Immigration Law Center, the Mexican American Legal Defense Educational Fund, the American Civil Liberties Union and the Arizona State University Alumni Law Group represented the DACA recipients who sued the state. The Arizona attorney general’s office and Fennemore Craig represented the state.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law