Notice & Comment

U.S. v. Texas – Some Observations as the Briefing Begins, by Michael Kagan

Last week the Obama Administration filed its opening brief in United States v. Texas, the pending case at the Supreme Court challenging President Obama’s immigration deferred action programs, known as DACA and DAPA. We haven’t seen Texas’ brief yet, but here are some initial reactions:

Justice Scalia’s Mixed Legacy for Deferred Action

Justice Scalia’s death hangs over every high stakes case this term. But his legacy for deferred action in immigration may turn out to be a surprise.

President Obama announced the first Deferred Action for Childhood Arrivals (DACA) program ten days before the Supreme Court announced its decision in Arizona v. U.S in 2012. The DACA program was not part of the Arizona litigation. But prosecutorial discretion in immigration enforcement – which is the legal foundation for DACA and the subsequent DAPA program – was a central part of the Court’s reasoning that parts of Arizona’s SB 1070 interfered with federal authority over immigration enforcement.

Justice Scalia used the last section of his dissent to bitterly protest DACA, despite the fact that DACA didn’t even exist when the case was argued. He wrote:

[T]here has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.

Given these views, it seems rather unlikely that Justice Scalia could have been persuaded to support the even larger DAPA and the expanded DACA programs that are at issue in the Texas case. But his death probably will not directly change the outcome of Texas because the Obama Administration needs five votes to overturn the Fifth Circuit’s injunction. If one assumes that Justice Scalia was never going to be one of those votes, the math remains the same as it ever was. Justice Kennedy (who wroteArizona) and the Chief Justice (who joined that decision) are probably the ones to watch.

Despite his open hostility in Arizona, Justice Scalia may yet help undocumented immigrants. The Obama Administration has three main precedents on its side in this case. The most general is Heckler v. Chaney, which says that non-enforcement decisions by agencies are normally unreviewable. Second, in Arizona, the Court endorsed “broad” prosecutorial discretion in immigration enforcement. The third case is Reno v. American-Arab Anti-Discrimination Committee (AADC), a decision written by Justice Scalia, which contains an explicit endorsement of deferred action programs. In that case, Justice Scalia quoted approvingly from a treatise which said the following:

To ameliorate a harsh and unjust outcome, the INS may decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation. This commendable exercise in administrative discretion, developed without express statutory authorization, originally was known as non-priority and is now designated as deferred action. A case may be selected for deferred action treatment at any stage of the administrative process.

This passage features prominently in the government’s opening brief in Texas, for good reason. Not only does it explicitly refer to deferred action and call it “commendable,” it explicitly states that such programs do not need statutory authorization. That, in a nutshell, is the Obama Administration’s argument. Thank you, Justice Scalia.

Is Federalism the New Exceptionalism?

Arizona was a federalism case, built on the premise that immigration policy is a federal domain. That was not really new. But Arizona may represent shift in terms of why immigration is a federal domain. In the Chinese Exclusion Case, the Court had decided that immigration authority was inherent in national sovereignty, rather than based on the Constitution. Born outside the Constitution, immigration law grew as an exception from the Constitution. Yet, Justice Kennedy’s majority decision in Arizona avoided relying directly on the Chinese Exclusion-era case law, instead citing the enumerated powers of the federal government as articulated in the text of the Constitution. The Court’s new enumerated powers approach is helpful to normalize immigration law, because it treats immigration as it would any other area of federal authority, and thus undermined immigration exceptionalism.

The government’s brief reflects this shifting terrain. It opens with an assertion of federal authority: “The federal power to determine immigration policy is well settled.” That is a statement that in years past might have been followed by a citation to the plenary power doctrine embodied by Chinese Exclusion Case or its progeny. But, following the reasoning that the Court used in Arizona, the government cites enumerated authority in the Constitution. It might have been tempting for the Administration to argue that immigration is a special realm in which the executive has especially wide discretion. But it does not do so. The Administration’s brief situates prosecutorial discretion in immigration squarely within the wider field of administrative law, relying on Heckler as much as it does immigration case law.

In the Texas case, case, the principle that immigration is a federal domain is important to bolster the Administration’s argument that it is dangerous to allow states to have standing to challenge immigration policies. This argument is strengthened because it potentially extends to any area of federal authority. Where once we would have seen the old plenary power doctrine and a claim to immigration exceptionalism, now we have little more than an argument about federalism.

DAPA’s Unlawful Presence Problem, redux

If the Administration does not win on standing, it will have to convince the Court that it had the statutory (and thus constitutional) authority to enact DAPA and DACA. The biggest problem here may be a single sentence in the DHS Guidance Memorandum establishing DAPA, which says, “[D]eferred action … means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” As I have written previously, I worry that this is DAPA’s Achilles’ heel. The argument for DAPA rests on the premise that deferred action is a form of prosecutorial discretion, but does not grant a legal status. That premise seems to be in tension with this sentence in the Guidance Memorandum, which appears on its face to be granting a legal status (lawful presence).

After my initial post raising this concern, several colleagues responded by illuminating the argument that “lawful presence” is a flexible legal concept that can mean different things in different contexts; see e.g. Prof. Marty Lederman’s comment to my post, and Prof. Anil Kalhan’s essay here. This is exactly what the Obama Administration’s brief argues. It notes that long before DACA or DAPA, deferred action beneficiaries were considered “lawfully present” for purposes of the Social Security Administration. This makes a great deal of policy sense, since working legally in the United States is so closely tied to the Social Security system. I am persuaded that there is more to these arguments than I initially thought. As Prof. Kalhan explains, a person can be deemed “lawfully present” for certain regulatory purposes, and yet still be “present in violation of the law,” and thus deportable under the removability provisions of the immigration statute.

Nevertheless, as a DAPA supporter I remain concerned for two reasons. One is simply that the argument on which the Administration relies is confusing to non-specialists, and to put it bluntly, it does not sound good even if it may be technically correct. The current approach will force the Solicitor General to assert that someone can be “lawfully present” and at the same time “present in violation of the law.” Even if this is technically correct, such confusing language invites judicial error and makes an easy target for ridicule.

The other reason I worry is the language of DAPA’s Guidance Memorandum. While there is a technical legal basis to deem a deferred action beneficiary to be lawfully present for certain narrow purposes, the Guidance Memorandum states more broadly that a beneficiary is “permitted” to be lawfully present, and does not tie this “permit” to a narrow regulatory purpose. The broad language suggests that DHS is trying to actually authorize a person’s presence in the country despite Congress’ refusal to do so. I doubt this was the intended meaning, since little of practical consequence flows from it. But the poor choice of words creates a reasonable basis for a judge to conclude that DAPA goes beyond prosecutorial discretion.

In sum, I still think unlawful presence is DAPA’s chief legal vulnerability, for one of two reasons.

1) The lawful presence provision in DAPA is actually not legal.


2) The lawful provision is technically within DHS’ authority, but it is sufficiently confusing to judges that it invites error.

Either way, we haven’t heard the last of this issue. I would expect that Texas will focus extensively on the lawful presence question when it files its brief. The interesting question may be how the Solicitor General responds in the government’s reply brief and at oral argument.

The “Idiosyncratic Behavior” of DHS Agents

I was heartened by way the Solicitor General rejected the assertion that deferred action policies should have gone through notice and comment. (I am probably biased, having written about this myself, making a similar argument to the one now advanced by the SG.)

Relying on a confusing line of D.C. Circuit case law, Texas and the Court of Appeals argued that notice and comment was required because DACA and DAPA are “binding” on frontline DHS agents. This has always struck me as a strange way to think about rulemaking. The Administrative Procedure Act governs the relationship between the public and agencies, so we should care about whether a rule binds an agency vis-à-vis the public. But the argument here has nothing to do with the public. It’s about internal management – about whether a notice and comment process is required for the Secretary of Homeland Security to direct his nominal subordinates how to do their jobs.

As the government argues: “Congress has vested the Secretary himself with discretion to administer the INA …Subordinate DHS agents exercise only the authority the Secretary has delegated to them.” The government’s brief rightly focuses on what this notice and comment claim is really about: The allocation of power between the President and his cabinet, and frontline agents who have actively opposed the President’s policies. If the President and cabinet secretaries cannot easily control how agencies use their power, unelected, anonymous government employees will grow more powerful de facto. The Obama Administration tackles this head on:

If anything, a policy that does not allow rank-and-file agents to be more aggressive is more clearly a “general” statement of policy because it advises the public of the manner in which theentire agency will exercise its discretion. The public need not guess about the idiosyncratic behavior of individual agents.

In this instance, giving more power to rank-and-file agents is exactly what Texas wants, because frontline ICE agents as a group do not agree with President Obama’s immigration policy. But requiring notice and comment to bind frontline agency employees would also make life harder for a future conservative president to control more left-leaning civil servants in a different agency. As the Solicitor General argued: “A contrary rule would undermine senior executives’ ability to control the Executive Branch. See U.S. Const. Art. II, § 1.” This is why, as I’ve written before, conservatives should not necessarily be upset if the Obama Administration wins this case.

Next up: Texas files its brief. Oral argument is April 18.

Michael Kagan is Associate Professor at the University of Nevada, Las Vegas, William S. Boyd School of Law. @rsdwatch

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