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Nov. 10 — The Department of Justice plans to seek U.S. Supreme Court review of a Nov. 9 decision from the U.S. Court of Appeals for the Fifth Circuit that upheld a hold on the two deferred action programs that are among the central elements of President Barack Obama's executive action on immigration.
The 2-1 Fifth Circuit majority—made up of two of the three judges who denied the administration's earlier request to stay a federal judge's hold on the programs—agreed with Texas and the 25 other states that brought the lawsuit that the cost of providing driver's licenses to program beneficiaries confers standing to sue.
It also found that the programs aren't merely an exercise of prosecutorial discretion, but rather a grant of lawful presence and benefits. In that regard, the court said, the programs at the very least should have been subject to notice-and-comment rulemaking, and likely violate the Immigration and Nationality Act.
Dissenting, Judge Carolyn Dineen King said the deferred action programs are discretionary acts related to the administration's enforcement priorities, and shouldn't be second-guessed by the courts. Any benefits that attach to a grant of deferred action derive from separate laws and regulations that the states didn't challenge, she said.
To suggest that such benefits make deferred action justiciable “sets a dangerous precedent,” she said, because that means “any non-enforcement decision that triggers a collateral benefit somewhere within the background regulatory and statutory scheme is subject to review by the judiciary.”
“This is logic to which I cannot subscribe,” King wrote.
The administration Nov. 10 announced its intent to take the case to the Supreme Court.
“The Department of Justice remains committed to taking steps that will resolve the immigration litigation as quickly as possible in order to allow [the Department of Homeland Security] to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children,” DOJ spokesman Patrick Rodenbush said in a statement. “The Department disagrees with the Fifth Circuit's adverse ruling and intends to seek further review from the Supreme Court of the United States.”
The American Immigration Council Nov. 9 called the Fifth Circuit's decision “disappointing but unsurprising,” saying the court's ruling that the states have standing to sue “sets a dangerous precedent.”
In a Nov. 9 statement, however, House Judiciary Committee Chairman Bob Goodlatte (R-Va.) called the decision a “victory for the Constitution and the American people.”
“President Obama's decision to ignore the limits placed on his power and act unilaterally to rewrite our nation's immigration laws is an affront to the Constitution,” Goodlatte said.
Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) Nov. 10 added that the decision continues to prevent the president's “unlawful maneuvering to implement his own policies, without regard for Congress, the law, or American workers.”
Rep. Linda Sánchez (D-Calif.), who chairs the Congressional Hispanic Caucus, Nov. 10 said the Fifth Circuit “is on the wrong side of history.” Still, she said, the decision provides an opportunity for newly elected House Speaker Paul Ryan (R-Wis.) to take the lead on an immigration system overhaul.
“We urge the Republican Speaker to allow a vote on comprehensive immigration reform, and to deal with an issue that is not going away,” Sánchez said.
The Fifth Circuit's decision leaves in place a February injunction from Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas preventing implementation of the deferred action for parents of Americans and lawful permanent residents (DAPA) program and expanded version of the deferred action for childhood arrivals (DACA) program (Texas v. United States, S.D. Tex., No. 1:14-cv-00254, preliminary injunction issued 2/16/15) (31 DLR AA-1, 2/17/15). The original DACA program, launched in 2012, wasn't challenged in the lawsuit and remains in place.
At the same time, it presents an opportunity for the Supreme Court to weigh in on the case. Over the past couple of weeks, some had suggested that the court deliberately took several months to issue a decision following oral arguments in July (132 DLR A-3, 7/10/15) in order to prevent Supreme Court review prior to the end of Obama's presidency.
Doris Meissner, director of the Migration Policy Institute's U.S. Immigration Policy Program, Oct. 28 accused the Fifth Circuit of “slow-walking the decision” (208 DLR A-8, 10/28/15). And U.S. Citizenship and Immigration Services Director León Rodríguez Nov. 5 pointed out that the court took more than three months to reach a decision, despite issuing a decision “promptly” after oral arguments on the request to stay the injunction (215 DLR A-6, 11/6/15).
Cornell University Law School Adjunct Professor Stephen Yale-Loehr told Bloomberg BNA Nov. 10 that the Fifth Circuit's decision to tackle the substantive issues—rather than just whether notice-and-comment rulemaking was warranted—makes it more likely that the Supreme Court will take up the case.
“Because they went beyond the district court and ruled on the statutory issue of whether the president has this authority, I think it is more likely that the Supreme Court will want to resolve this issue,” according to Yale-Loehr, who also is of counsel to Miller Mayer in Ithaca, N.Y.
Yale-Loehr pointed to a paragraph in the majority decision by Judge Jerry E. Smith expressing the court's view on the legality of DAPA. “Even with ‘special deference' to the Secretary,” Smith wrote, referring to the head of the DHS, “the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.”
Yale-Loehr said, however, that even if the Supreme Court accepts and decides the case by the end of its current term in June 2016, it is “not likely to end this litigation.”
The decision pertains only to the propriety of a preliminary injunction, and a trial still needs to be held on the merits, he told Bloomberg BNA. In addition, there are other arguments that the Fifth Circuit didn't address, such as the states' constitutional claims, he said.
Writing for the majority, Judge Smith first determined that the state of Texas, the lead plaintiff, has standing to sue because of the cost it would face from providing driver's licenses to about 500,000 DAPA beneficiaries. “As we will show, DAPA would have a major effect on the states' fiscs, causing millions of dollars of losses in Texas alone, and at least in Texas, the causal chain is especially direct: DAPA would enable beneficiaries to apply for driver's licenses, and many would do so, resulting in Texas's injury.”
The court refused to consider the administration's argument that those costs would be offset by other benefits from the deferred action programs. Only those offsetting benefits that are of the same type and arise from the same transaction as the costs can be considered in determining whether a plaintiff has an injury for standing purposes, it said.
The states' claims also fall within the “zone of interests” protected by the INA, the court said. “Congress has explicitly allowed states to deny public benefits to illegal aliens,” Smith wrote. “Relying on that guarantee, Texas seeks to participate in notice and comment before the Secretary changes the immigration classification of millions of illegal aliens in a way that forces the state to the Hobson's choice of spending millions of dollars to subsidize driver's licenses or changing its statutes.”
The majority rejected the administration's argument that the case isn't justiciable because DAPA and DACA are exercises of prosecutorial discretion. Deferred action, Smith wrote, “is much more than nonenforcement: It would affirmatively confer ‘lawful presence' and associated benefits on a class of unlawfully present aliens.”
Relying on administration of DACA, the majority also found that DAPA isn't discretionary in practice.
As for the administration's argument that DACA and DAPA don't confer work authorization—it comes from prior regulations at 8 C.F.R. § 274a.12(c)(14)—the court said the administration's “limitless reading of that subsection” is “beyond the scope of what the INA can reasonably be interpreted to authorize.”
The court said the administration's interpretation of the statute isn't entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Congress has directly addressed the precise issue here by specifically carving out limited circumstances under which undocumented immigrants can lawfully reside in the U.S. and receive benefits, it said. The INA also contains an “intricate process for illegal aliens to derive a lawful immigration classification from their children's immigration status,” Smith wrote.
Furthermore, the INA “specifies classes of aliens eligible and ineligible for work authorization, including those ‘eligible for work authorization and deferred action'—with no mention of the class of persons whom DAPA would make eligible for work authorization,” he said. “DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress's stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.”
Finally, the majority rejected the administration's request for an injunction limited only to those states that brought the lawsuit. Immigration law should be applied uniformly across the country, and a limited injunction likely would be ineffective because DAPA beneficiaries could move among the states, it said.
Judge Jennifer Walker Elrod joined the majority opinion.
In dissent, Judge King took issue with the majority's decision that the states have standing. “I have serious misgivings about any theory of standing that appears to allow limitless state intrusion into exclusively federal matters—effectively enabling the states, through the courts, to second-guess federal policy decisions—especially when, as here, those decisions involve prosecutorial discretion.”
King criticized the district court and the majority for ignoring the “clear language” of the DAPA memorandum, which expressly states that DHS officers should exercise discretion in deciding whether or not to approve applicants for the program. In addition, she said the majority decided, without any evidence, that DAPA lacks discretion in practice.
DAPA hasn't been implemented, so there is no way to tell how it would operate, King said. Rather, she said, the district court looked to DACA, where there is at least conflicting evidence as to the amount of discretion it allows.
Finally, King criticized the majority for addressing the states' substantive claim that DAPA and expanded DACA are contrary to the INA, when the district court didn't do so. “It is hard to see how DAPA is unreasonable on the record before us,” she wrote. “DAPA does not negate or conflict with any provision of the INA.”
“Indeed, if DAPA were unreasonable under the INA, then it follows that ad hoc grants of deferred action are unreasonable as well—something the majority declines to reach,” King wrote.
Benjamin Mizer of the Justice Department argued for the administration. Texas Solicitor General Scott Keller argued for the states.
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