When Texas filed a constitutional challenge to President Obama’s executive action on immigration, his supporters scoffed and ridiculed the suit as lacking any merit. First, they argued, states are not injured by the federal policy. Second, they contended that Congress had already given the president the discretion to halt the deportation of millions. Finally, they predicted that the courts would stay out of this important policy debate. The Justice Department’s brief rebuked the suit, alleging that the claims “are based on rhetoric, not law.” Judge Andrew S. Hanen in Brownsville, Texas, disagreed. In a massive 123-page opinion issued on Monday, Judge Hanen thoroughly rejected each of these arguments, vindicating Texas — and 25 other states that joined it — in this challenge to the president’s disregard of the law.
On November 20, 2014, President Obama announced Deferred Action for Parental Accountability (DAPA). This executive action purported to rely on “prosecutorial discretion” to defer the deportations of up to 5 million aliens and grant them work authorization. Only two weeks later, former attorney general, and now-governor Greg Abbott challenged DAPA in federal court in Brownsville. On February 16 — only two days before the Department of Homeland Security would begin accepting new applicants — Judge Hanen ruled that DAPA was unlawful and must be stopped.
After establishing that Texas had standing to sue in federal court, Judge Hanen turned to the lawfulness of the executive action. DAPA was decreed on November 20, 2014, in a series of memorandums, without any opportunity for the public to comment beforehand. Judge Hanen found fatal the government’s failure to comply with the notice-and-comment requirements of the Administrative Procedures Act (APA). But the court went further, finding that DAPA was not an exercise or prosecutorial discretion. Rather, DAPA amounted to a decision to “‘consciously and expressly adopt a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” The president was willfully disregarding the laws of Congress that he did not agree with. Specifically, DAPA “does not simply constitute inadequate enforcement; it is an announced program of non-enforcement of the law that contradicts Congress’ statutory goals.” This policy, Hanen concluded, is unlawful and must be halted.
The court did not need to address the constitutional issue, and it did not address whether the president failed to comply with the Constitution’s requirement that he “take care that the laws be faithfully executed.” Judge Hanen, however, showed his hand by explaining that the president had engaged in a “complete abdication” of the law. Rather than enforcing the law, Hanen saw Obama’s actions as making law: The executive is “is not just rewriting the laws; he is creating them from scratch.” This is the role of Congress, not the president. Even if the administration complies with the notice-and-comment process of the APA — unlikely with only 20 months until the next election — such a broad policy of non-enforcement would still run afoul of the Take Care clause.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law, Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare. He blogs at JoshBlackman.com. Mr. Blackman joined an amicus brief in support of Texas on behalf of the Cato Institute.