This column by ACRU Policy Board member Hans von Spakovsky was published November 11, 2015 by The National Review.
It was like a wake inside the Department of Homeland Security’s D.C. headquarters on Tuesday, according to a source inside the DHS. The previous evening, a three-judge panel of the Fifth Circuit Court of Appeals ruled against the Obama administration’s immigration amnesty plan again, holding that the president has “no statutory authority” to take such unilateral action.
The court upheld the preliminary injunction issued February 16 by federal district court judge Andrew Hanen. Assuming the administration abides by the court order, the amnesty plan remains on hold.
Texas led a coalition of 26 states that filed suit against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program that President Obama announced last November. They challenged the program on the grounds that it violated both the notice and comment requirements of the federal Administrative Procedure Act (APA) and the Take Care Clause of the Constitution.
DAPA would grant “lawful presence” to more than 4 million illegal aliens and give them Employment Authorization Documents (EADs) — renewable, three-year work permits. Moreover, as the government admitted in its opening brief, granting “lawful presence” status would make them eligible to receive “social security retirement benefits, social security disability benefits, or health insurance under Part A of the Medicare program.” The government did not deny the district court’s finding that such aliens would also become eligible for earned-income tax credits and entitled to numerous state benefits such as unemployment insurance and driver’s licenses.
The Fifth Circuit refused to lift Judge Hanen’s injunction, which the court described as “an impressive and thorough” opinion, because the “states have standing [and] they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims.” The 124-page opinion does a thorough job of explaining why President Obama’s administrative amnesty program violates the law. It also completely discredits the dissent written by Carter appointee Carolyn King, extensively footnoting the numerous factual errors and false assumptions she made.
For example, the government went into the Fifth Circuit claiming the states didn’t have standing to sue the federal government. The court disagreed, saying “their standing is plain” given the extensive costs they will incur if the president’s plan is implemented. In a footnote, the panel criticizes Judge King, saying that throughout her dissent, she “cleverly refers to the states, more than forty times, as the ‘plaintiffs,’ obscuring the fact that they are sovereign states.” This is an attempt “to diminish the considerable significance” of the fact that sovereign states are entitled to “special solicitude” in the standing inquiry according to a 2007 Supreme Court decision, Massachusetts v. EPA (2007), that was supported by another decision just last term, Arizona State Legislature v. Arizona Independent Redistricting Commission.
The panel also criticizes Judge King’s claim, parroting the administration, that all of the costs incurred by the states could be avoided. The states, it notes, cannot be subjected to such blackmail by the federal government:
In essence, the dissent would have us issue the following edict to Texas: “You may avoid injury to the pursuit of our policy goals — injury resulting from a change in federal immigration law — by changing your laws to pursue different goals or eliminating them altogether. Therefore, your injuries are self-inflicted.”
The Fifth Circuit also dismissed the government’s claim that the DAPA program is judicially unreviewable as a matter of prosecutorial discretion (in this case, the decision not to prosecute illegal aliens). While the government has broad prosecutorial discretion, “it is not ‘unfettered.’” The majority counters the administration’s argument, noting:
Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change. Regardless of whether the Secretary [of DHS] has the authority to offer lawful presence and employment authorization in exchange for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.
In a straightforward summary of what this case is all about, and in explaining why the court ruled in favor of the states, the Fifth Circuit panel says this:
At its core, this case is about the Secretary’s decision to change the immigration classification of millions of illegal aliens on a class-wide basis. The states properly maintain that DAPA’s grant of lawful presence and accompanying eligibility for benefits is a substantive rule that must go through notice and comment, before it imposed substantial costs on them, and the DAPA is substantively contrary to law.
The states met all of the elements necessary for an injunction to be issued, and the panel found no reason to overturn Judge Hanen’s injunction, particularly given that “DAPA is not authorized by statute.” Moreover, the dissent is simply wrong when it “repeatedly claims that congressional silence has conferred on DHS the power to act,” the court noted, adding: “To the contrary, any such inaction cannot create such power.”
What is particularly striking in this Fifth Circuit opinion is the contrast between the solid legal analysis of the majority and the political analysis of the dissent. It is a great example of the difference between, on one hand, judges who try to apply the Constitution and the law to the facts, and, on the other, liberal judges whose politics and ideology drive their decision-making. As the panel says in another scathing footnote:
The main thrust of the dissent could be summarized as claiming that “[i]t’s Congress’s fault.” The President apparently agrees: As explained by the district court, “it was the failure of Congress to enact such a program that prompted [the president]… to “change the law.” The dissent opens by blaming Congress for insufficient funding…. The dissent’s insistent invocation of what it perceives as Congress’s inadequate funding is regrettable and exposes the weakness of the government’s legal position…. The facts, not commentary on political decisions, are what should matter. Thus the dissent’s notion that “this case essentially boils down to a policy dispute,” far misses the mark and avoids having to tackle the hard reality — for the government — of existing law. Similarly unimpressive is the dissent’s resort to hyperbole.
There is also a part of the holding that should give the administration pause. At one point, in criticizing the government’s claim that it has authority to implement the DAPA program under federal immigration law, the court says:
The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal aliens in the United States — an untenable position in light of the [Immigration and Naturalization Act’s] intricate system of immigration classifications and employment eligibility. Even with “special deference” to the Secretary, 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.
Apparently, that is exactly what the administration is contemplating. A recently leaked DHS memorandum summarizes an off-the-record DHS meeting held this summer to discuss “open market Employment Authorization Document (EAD)” changes. Outlined in the eight-page memo (which is marked as “Not for Distribution”) are four different options for the administration to take.
Option number one, which is the most extreme proposal in the memo, calls for the administration to provide an EAD or work permit to all “individuals who are physically present in the United States.” In other words, this option would have the DHS Secretary, as the Fifth Circuit panel says, attempt to “grant lawful presence and work authorization to any illegal aliens in the United States.” If the administration tries to put this option in place, the Fifth Circuit has already said there is no legal authority for such an action, which would make the DAPA program look minimal by comparison.
With this ruling, the government could have asked the full Fifth Circuit to review the case. However, the administration has already announced that it will be filing an appeal with the U.S. Supreme Court. Given the makeup of the Fifth Circuit and the shortness of time remaining in the president’s term, this makes sense. The government knows that there are four justices who will, in all likelihood, vote in favor of the administration to overrule the Fifth Circuit. All the administration has to do is convince one of the other wavering justices on the Court to rule with its liberal allies.
The states are in a strong position, given the solid analysis of both Judge Hanen’s original decision and the opinion of the Fifth Circuit panel. It is important to note that the injunction was issued on statutory grounds under the APA claim; the constitutional challenge by the states based on the “Take Care Clause,” which requires the president to take care that the laws are faithfully executed, has not yet been decided by either Judge Hanen or the panel.