On November 20 and 21, 2014, President Barack Obama announced a series of administrative reforms of immigration policy, collectively called the Immigration Accountability Executive Action. These reforms center on plans to expand eligibility for the current Deferred Action for Childhood Arrivals (DACA) initiative, and to create a Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative for the parents of U.S citizens and lawful permanent residents who meet certain criteria. Both DACA and DAPA derive from the executive branch’s authority to exercise discretion in the prosecution and enforcement of immigration cases. In both instances, the President has authorized the Department of Homeland Security (DHS) to defer for three years the deportation of qualified individuals who pose no threat to the United States in the hope that Congress will finally undertake comprehensive, more permanent immigration reform.
Within hours of the announcement, notorious Maricopa County, Arizona Sheriff Joe Arpaio challenged the President’s plan to defer deportations in a Washington, D.C., federal court, in a case named Arpaio v. Obama. Shortly thereafter, representatives of 17 states filed a similar case in a Brownsville, Texas, federal court, with 9 other states later joining the lawsuit, in a case named Texas v. United States.
On the other hand, a broad spectrum of supporters has filed “friend-of-the-court” briefs supporting the President’s plan. These supporters include: 15 states and the District of Columbia, 73 U.S. mayors and county officials (led by New York, Los Angeles, Chicago, and Houston ), over 30 heads of local law enforcement agencies, 181 U.S. Representatives, four U.S. Senators, over 150 civil rights, labor, and immigrants’ rights groups, 19 faith organizations, organizations representing educators and children’s advocates, and businesses and trade associations. The cities supporting the President’s program contain more undocumented immigrants than the states opposing it.
The U.S. Government opposed both lawsuits on the grounds that the President’s actions were a lawful use of prosecutorial discretion, and that the plaintiffs lacked “standing” to bring their cases, since plaintiffs were not harmed. Both arguments are supported by a wide range of law professors and experts.
The Washington, D.C. federal court promptly dismissed Sheriff Arpaio’s lawsuit. That decision is currently on appeal, with arguments scheduled for May 4.
Separately, the Texas federal court preliminarily blocked, on procedural grounds, the President’s DAPA and expanded DACA initiatives (but not original DACA) on February 16, 2015. The Department of Justice appealed this order, with arguments scheduled for July 10, 2015. The Department of Justice also asked for an emergency stay of the preliminary injunction pending the Fifth Circuit’s ruling on the appeal of the preliminary injunction itself. On May 26, 2015, the court denied this request in a 2-1 decision.
The Texas court’s ruling is the first round in what will clearly be a much longer legal battle. While these cases are more political diatribe than legal argument, and are unlikely to succeed in the long run, understanding the procedural steps and the nature of the arguments helps to put the cases in perspective.
The Lawsuits
Both lawsuits seek to “enjoin,” meaning to block implementation of, DAPA and expanded DACA. They argue that the executive actions violate the “Take Care” clause of the Constitution because they allege the president has changed the law rather than “tak[ing] care that the laws be faithfully executed.” Initially, both lawsuits sought a “preliminary injunction”—a temporary block during the life of the lawsuit—which is an “extraordinary remedy.” To grant a “preliminary injunction,” the court must find that four factors exist—(1) the challenger is likely to succeed on the merits, (2) the challenger is likely to suffer “irreparable harm” without the injunction, (3) the “balance of equities” supports the challenger, and (4) an injunction is in the “public interest.”
Sheriff Arpaio’s complaint alleged harms based on crime. Specifically, Arpaio’s theory was that DACA and DAPA will cause a “flood” of “millions more illegal aliens,” and in turn a “crime wave”—because many “illegal aliens… are repeat offenders”—thus requiring additional expenditures of funds and resources by his law enforcement office. This argument is flatly contradicted by empirical evidence that immigrants have lower crime rates than the native-born.
The states’ complaint similarly argued that expanded DACA and DAPA will trigger a “wave” of immigration—even larger than the alleged “flood” of Central American families to the United States caused by DACA (ignoring the substantial evidence that fear of persecution and violence is driving Central Americans from their homes). The states also alleged that this wave will “increase human trafficking” by drug cartels and thus “exacerbate the risks and dangers imposed on [states] by organized crime.” In addition, the states alleged broader harms from the expenditures on law enforcement, health care, education, and processing professional licenses.
Dismissal of Sheriff Arpaio’s Lawsuit (Arpaio v. Obama)
Washington, D.C. federal judge Beryl A. Howell dismissed Arpaio’s lawsuit, one day after holding a hearing on it. The court held that:
- The plaintiff lacks “standing” to bring their claims. The Court found it was “not apparent exactly” what injury plaintiffs suffered because plaintiffs have “no legal authority to enforce the immigration laws.”
- Any harms plaintiff did suffer were “speculative.” “The decision for any individual to migrate is a complex decision with multiple factors, including factors entirely outside the United States’ control, such as social, economic and political strife in a foreign country.” Thus, the Court found it speculative that the President’s deferred action initiatives—which do not apply to future immigrants—would result in immigrants unlawfully entering Maricopa County, Arizona or elsewhere in the United States. Indeed, DHS’ policies that focus enforcement resources on those who have committed crimes may actually “end up helping” the plaintiff.
- Even if the plaintiff could establish standing, the Court held that the plaintiff “could not demonstrate a likelihood of success on the merits” of the case. For one, President Obama’s directives are “consistent [1] with, rather than contrary to, congressional policy.” Congress has endorsed deferred action on several occasions, at times expanding its applicability. The court also cited approvingly the Supreme Court case Arizona v. United States (2012) [2], which said that the federal government’s immigration enforcement discretion includes the decision whether to even pursue removal.
- Additionally, the Court held that DACA and DAPA do not “amount to unlawful legislation and/or rulemaking,” because Congress delegated authority to DHS to establish enforcement priorities, under which DHS is acting regarding deportations.
- Moreover, the public interest does not support halting President Obama’s directives. Rather, doing so would inhibit DHS’ ability to “focus on its statutorily proscribed enforcement priorities” [sic] and “upset the expectations” of DACA and other eligible participants.
Arpaio appealed the dismissal of his case to the higher federal court, the D.C. Circuit Court of Appeals. The parties have filed their briefs with the Court, and the Court will hold oral arguments on May 4, 2015.
Preliminary Injunction in States’ Lawsuit (Texas v. United States)
On February 16, 2015, Brownsville, TX federal judge Andrew Hanen, of the U.S. District Court for the Southern District of Texas, temporarily enjoined DAPA and the planned expansion of DACA pending a higher court’s contrary order or a trial on the merits. Highlights of the court’s reasoning included:
- Texas has standing to bring this lawsuit because DAPA and expanded DACA will create a new class of individuals eligible to apply for driver’s licenses, which the states argued will impose processing and issuance costs on them. The court did not address the offsetting economic benefits that states would also realize from DAPA and expanded DACA, including higher wages, increased tax revenue, and new jobs. The court also rejected other standing arguments by the plaintiffs—namely, that DAPA will cause indirect costs to states such as for public education and uncompensated medical care.
- Judge Hanen based his ruling on narrow procedural grounds—that the Government did not comply with certain technical requirements under the Administrative Procedure Act (APA), including notice-and-comment rulemaking.
In reaching this conclusion, Judge Hanen found DAPA and DACA to be substantive rules subject to notice and comment procedures, rather than general statements of policy. However, DHS pointed out that the DACA and DAPA initiatives are policies, under which DHS must decide on a case-by-case basis whether to grant a particular request. Indeed, DHS national procedures for officers reviewing DACA claims specifically allow discretionary denials. The procedures provide a form with a box specifically allowing denials solely on the basis of discretion—even where eligibility guidelines are met, as well as another box permitting denial where a requestor “do[es] not warrant a favorable exercise of prosecutorial discretion because of national security or public safety concerns.”
- The ruling did not address the constitutionality of President Obama’s initiatives. Indeed, the decision affirms the Secretary of Homeland Security’s authority to set the Department’s enforcement priorities and to marshal its resources accordingly.
- The court explicitly did not enjoin original DACA. DHS reinforced this point, reminding that “individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012.”
- Regarding the public interest, the court found the cost of issuing drivers’ licenses and other benefits to prospective deferred action beneficiaries to be decisive. This is contrary to evidence that President Obama’s policy helps, not harms, the public interest, as an amicus brief [3] by the American Immigration Council and others argued. Conversely, halting President Obama’s policy will harm the economy and affected individuals, who have significant ties in the United States.
The White House immediately stated that the “district court’s decision wrongly prevents these lawful, commonsense policies from taking effect.”
Current Status of States’ Lawsuit (Texas v. United States)
The government subsequently appealed the decision granting the preliminary injunction to the higher federal court, the Fifth Circuit Court of Appeals. This appeal is proceeding on an expedited basis, and the court will hear oral argument on July 10, 2015.
In addition, the government asked Judge Hanen to “stay” the injunction (i.e., stop the injunction from being in effect), and then made the same request—on an emergency basis—to the Fifth Circuit when Judge Hanen did not rule quickly. Fifteen states that are not suing plus the District of Columbia supported the government’s efforts to stop the preliminary injunction from going into effect, citing the economic and social benefits they expect to receive from President Obama’s action. Nonetheless, on May 26, 2015, a divided panel of the Fifth Circuit Court of Appeals denied [4] the request for an emergency stay of the preliminary injunction, with the result that the hold on implementation of DAPA and expanded DACA will continue while the Fifth Circuit considers the appeal of the preliminary injunction itself. The majority concluded that the federal government was unlikely to succeed in its appeal of the preliminary injunction and indicated its agreement with Judge Hanen’s decision. In his dissenting opinion, Judge Stephen A. Higginson, called out the “political nature of this dispute” and argued that the courts have no role to play in reviewing the Administration’s policy choices. The Department of Justice said that it will not seek an emergency stay from the Supreme Court, given that the appeal is on an expedited schedule.
Meanwhile, after the appeal was filed, the Fifth Circuit issued a significant decision with implications for Texas v. United States. It unanimously dismissed Crane v. Johnson, a separate lawsuit challenging the original DACA program by the State of Mississippi and several ICE officers. That Crane decision sets a precedent that undermines the Texas plaintiffs’ arguments, by rejecting the Crane plaintiffs’ standing arguments under “especially rigorous” scrutiny, and recognizing that not only DACA but also DAPA and expanded DACA require case-by-case adjudication.
Conclusion
The lawsuits challenging DAPA and expanded DACA are merely attempts to use the courts to challenge President Obama’s authority to defer deportations, even though widespread agreement exists that his actions are well within his authority. Scratching the surface of these complaints yields highly speculative arguments—little more than the economic and criminal myths that have long been the focus of anti-immigrant rhetoric. These are the same arguments restrictionists have used to fight immigration reform in Congress, to champion Arizona’s SB 1070 and similar state anti-immigrant laws, and to promote “enforcement first” for decades. Meanwhile, immigration executive action is expected not only to preserve families, but also to increase U.S. gross domestic product, increase tax revenue, and raise wages (although legislative reform would likely have a larger impact).
Updated On: Tue, June 2, 2015
Published On: Thu, Mar 12, 2015 | Download File [5]