Last month I offered some thoughts on the Obama Administration’s opening brief in United States v. Texas, the pending Supreme Court challenge to the President’s deferred action policies for unauthorized immigrants (known as DAPA and DACA). Texas has now filed its brief opposing the programs.
Looking at this from the 10,000 foot level, there are multiple ways someone might criticize President Obama’s broad use of deferred action to benefit millions of unauthorized immigrants who would otherwise be in danger of deportation. One would be to claim that Congress, and only Congress, can shield non-citizens from immigration enforcement. Or, a critic of the Obama policies could concede that prosecutorial discretion and even deferred action have a legitimate place in immigration law, but that specific aspects of DAPA go too far. Texas has chosen the latter path.
In the brief, Texas and its allied states go to considerable effort to tell the Court that its complaints against the President’s policies are narrow. The brief repeatedly tells the Court about prosecutorial discretion policies that they are not challenging. Texas is not objecting to deferred action per se, nor to prosecutorial discretion in immigration enforcement. Instead, the objections here mainly relate to employment authorization and “lawful presence,” two specific benefits available to DAPA beneficiaries. Texas also objects to “class-based” deferred action, insisting that such policies must be individualized and decided case-by-case.
This attempt to narrow the attack may be a smart approach for DAPA opponents. The Supreme Court has explicitly endorsed deferred action in the past, and has broadly embraced prosecutorial discretion in immigration. By narrowing its attack, Texas hopes to sidestep these precedents. But this strategic choice is not without peril for Texas. The argument shifts to the details, rather than the principle. The Administrations will first say that Texas is simply getting the details wrong. But it seems to me that the narrow focus of Texas’ critique opens the door to another kind of response based on judicial modesty. If the legal objections are in fact narrow, then the resulting injunction should be narrow as well. By focusing on the details, the Administration can narrow Texas’ objections, even if it cannot entirely defeat them. In trying for a dagger to the heart of Obama’s immigration policies, Texas could end up with nothing but a pin prick.
Let’s look at the details.
Texas argues that DHS is exceeding its discretionary authority by considering all deferred action beneficiaries for employment authorization. There is no doubt that employment authorization is probably the chief practical benefit offered by DACA and DAPA. But Texas is fighting several decades of administrative practice, as well as the structure of the statute.
Texas’ strongest argument is that given Congress’ concern about illegal employment of non-citizens, the statutory authorization should have been crystal clear. But there is a statutory basis for what the Obama DHS is doing. The Immigration and Nationality Acts (INA) says that an employer may not employ a non-citizen unless she is a legal permanent resident or she is “authorized to be so employed by the [statute] or by the [Secretary].” This phrasing makes sense only if some people may be authorized to work at the discretion of DHS, beyond the categories of people explicitly authorized to work Congress. Texas claims that the Secretary may only authorize work for categories of non-citizens defined by statute. But that interpretation would render the phrase “or by the [Secretary]” superfluous.
The policy framework is important here. Congress opted for employer-side regulation of immigrant employment. The INA does not actually prohibit unauthorized immigrants from working. Instead, it prohibits employers from hiring them. Since Congress knows that DHS cannot deport every unauthorized immigrant, it makes sense that Congress would allow some executive flexibility about who can be authorized to work. Moreover, in this case Texas seems to concede that prosecutorial discretion and deferred action have a legitimate place in immigration law. That being so, why wouldn’t Congress want to allow for executive discretion regarding work authorization for deferred action beneficiaries? Texas, in its brief, grudgingly acknowledges that there are some historical precedents for authorizing employment in this way.
Could the statute be clearer? Sure. But the statute is not silent, and to the degree it says anything it seems to give DHS discretion to authorize employment.
The Achilles’ Heel
I have more sympathy with Texas’ argument that DHS went too far in declaring that a DAPA beneficiary “is permitted to be lawfully present in the United States.” This phrase is the program’s legal Achilles’ heel; it was the lynchpin of the Fifth Circuit’s decision affirming the injunction. The 2012 version of DACA did not include this provision, and was not challenged in this case (although the practice was the same).
The question here is one of definition. What exactly does “lawfully present” mean in this context? Texas says that DAPA “affirmatively grants lawful presence to aliens who would otherwise be unlawfully present.” This is a natural reading of the Memorandum’s phraseology and makes it sound as if the President is trying to make legal something Congress has made illegal. But the Administration, and a number of immigration law scholars (see, e.g., Anil Kalhan), argue that “lawfully present” is really just an administrative designation for narrow regulatory purposes, the most important of which concern payroll taxation. If deferred action beneficiaries are authorized to work, then we want them to pay FICA taxes like everyone else. In order to get a Social Security number, non-citizens must be “lawfully present in the United States as determined by the [Secretary],” according to the language of the statute. Again, the statutory text seems to be assigning discretion to the Secretary of Homeland Security, much as it did for employment. If the Secretary has discretion to authorize employment, it is logical that the Secretary should be able to also deem a person lawfully present, at least for the narrow purposes of Social Security and Medicare.
There are other uses of “lawful presence” in immigration law, however. Most importantly, a person who was unlawfully present in the United States for more than six months and who leaves the country is subject to ban an re-entry for three or ten years. The Administration has been exempting time spent with deferred action from counting for this purpose. But these legal details have little practical consequence in most real life cases. DAPA beneficiaries have been in the United States for years, and are not usually trying to reenter, so the 3/10 year bar is not their first concern. And if DHS decides it wants to deport someone with deferred action, it just revokes the deferred action. According to the INA, a person is deportable for being “present in violation of the law,” which arguably is a different legal concept than “lawfully present” for narrow purposes – though a non-immigration specialist could certainly be forgiven for thinking that these are two ways of saying the same thing.
Clearly, the first line of defense for the Administration is to convince the Court that “lawful presence” is a narrow term of art, so Texas’ objections to it are based on a misunderstanding. But the broad language used in the Memorandum – coupled with the confusing provisions of the immigration statute – may nevertheless be a problem with the justices. The Administration should thus consider a potential second line of defense that concedes that Texas may have a narrowly legitimate point about lawful presence. Why should an objection to this one phrase – a phrase that may only rarely have the practical impact that Texas fears it will – justify an injunction against the entire policy? The fact that the original 2012 version of DACA did not even have this provision shows that it is peripheral to the overall policy, and it is thus a judicial overreach to use the lawful presence objection to enjoin the whole policy.
The Solicitor General could ask, in the alterative, for a more narrow injunction. After all, if Texas’ objections are narrow, and if lawful presence has such a narrow practical impact, why shouldn’t the inunction be narrowly tailored as well? The Solicitor General could ask that lawful presence under DAPA be limited to eligibility under Social Security and Medicare only, since the statute authorizes the Secretary to determine lawful presence for those narrow purposes. If there is a narrow legal problem with DAPA, a court should seek the most limited action possible to correct it.
The Trouble with Enormity
Texas invokes the Office of Legal Counsel’s 2014 warnings about the danger of “class-based” deferred action programs. OLC’s original concern – which was thoroughly discussed at the time – was that class-based prosecutorial discretion programs “cross the line between executing the law and rewriting it.” By creating a clearly defined class of potential beneficiaries, DACA and DAPA look much more like pieces of legislation. But despite some surface appeal, the class-based objection faces some difficulties.
Texas seems to concede that Homeland Security has wide powers of prosecutorial discretion, and also seems to concede that deferred action can be granted, at least on a case-by-case basis. But if each of DAPA’s would-be beneficiaries could be given deferred action on an individual basis, what is the legal problem with the DHS Secretary inviting them all, as a class, to apply? Doing so would seem to promise some transparency and consistency. Texas complains that DAPA is “enormous,” and there is some appeal to the argument that a program this big deserves a higher level of scrutiny. But the trouble with the enormity argument is that there are no apparent principles by which to say how many beneficiaries is too many.
The concern about class-based deferred action seems to connect best with Texas’ argument that if DAPA is legal, it must go through notice and comment. Relying on a muddled line of D.C. Circuit case law, Texas (and the Fifth Circuit) argue that DAPA is a legislative rule because the Secretary of DHS issued the memorandum to “bind” frontline agents. Yet, as I have argued elsewhere, neither the D.C. Circuit nor the Fifth Circuit have been consistent about what they mean by a “binding” rule. A policy that is class-based is very likely to “bind” field agents; these may be two ways of saying the same thing.
But the real question is whether five Supreme Court justices think internally binding rules require notice and comment. As we learned in Perez v. Mortgage Bankers the Supreme Court has little trouble discarding D.C. Circuit doctrines. Tellingly, the Administration largely ignored the D.C. Circuit in its brief, arguing instead that Congress gave discretion to the Secretary, not to frontline agents. For the Administration, a class-based deferred action policy retains the Secretary’s discretion, but strips power away from agents lower down on the organizational chart. A good number of prominent administrative law scholars have argued that internally binding policies should be encouraged.
The Administration told the Court that frontline immigration agents are often “idiosyncratic.” That is a polite way of saying that frontline ICE and USCIS agents oppose the President’s policies. In its brief, Texas underscored the Administration’s point, quoting the President complaining that DHS immigration agents do not follow orders like soldiers in the military, and saying that there should be “consequences” for those who don’t adhere to the Administration’s policies. Texas included these quotes to show that DAPA is binding on frontline officers. But it also serves to highlight the Administration’s argument that low level immigration officials have been a problem. Is the President wrong to be frustrated by insubordination?
Texas says that its position would not prevent top DHS officials from controlling their subordinates because rules of internal agency organization are not subject to notice and comment. But no one is arguing that the internal agency organization exception applies here. The question in this case is whether DAPA is a “general statement of policy.” Wouldn’t a “general policy” normally be broad and potentially class-based? What is the use of general statement of policy if frontline agents can just ignore it? Because it relies so extensively on D.C. Circuit case law, Texas never quite answers these questions.
Reading only the briefs, Texas has a compelling case to be made in part because of the broad language used in the DAPA Memorandum, and because of the convoluted structure of immigration law. It is easy to make something like “lawful presence” sound like it means more than it really does. If the justices dig into details, Texas’ objections will appear much smaller, if not entirely misplaced. But much may depend on whether five justices are willing to dig into these weeds.
Oral argument is April 18.