Judge Hanen’s Presidents’ Day drubbing of Obama’s amnesty agenda was so comprehensive in its rebuttal of the DOJ’s arguments that the DOJ’s initial reaction was stunned silence rather the immediate flurry of filings that usually follow their rare defeats. In his ruling, the judge swiftly smacked down the Department of Homeland Security’s attempt to assert that it had a “generalized discretion” to enforce or not enforce our immigration laws. Such a generalized approach, he wrote, would render Congress’s carefully drafted statutes on immigration “superfluous” and “meaningless.” Hanen further pointed out that the DOJ’s approach to DHS’s discretion was so expansive that “the only logical end point of its argument” was that DHS “could have made DAPA [Deferred Action for Parental Accountability] applicable to all 11.3 million [illegal] immigrants” in the country.
What Judge Hanen could have rebutted more fully, however, was the DOJ’s purported statutory basis for claiming such sweeping discretion in immigration enforcement. In a footnote of their brief, the DOJ cites Obama’s Office of Legal Counsel (OLC)’s made-to-order DAPA opinion to assert that Secretary Jeh Johnson’s “authority to grant work authorization” is “confirmed” by a federal regulation — 8 C.F.R. § 274a.12(c)(14) — which they allege “has long been understood to recognize [such authority].” Rightly, the DOJ made the point that “plaintiffs [did] not challenge” this regulation as a legal basis for DAPA’s work-authorization provisions. Judge Hanen also failed to challenge it, but he easily could have. Let’s hope that he does as the case proceeds. This once-obscure regulation is the statutory linchpin for DAPA’s work-permit program and presumably for the work-permit program in DACA (Deferred Action for Childhood Arrivals] as well. (The OLC has never published its legal opinion on DACA; recently, the Immigration Reform Law Institute has requested through FOIA that they make this opinion public.) Immigration-law expert John Eastman recently eviscerated the DOJ’s assertion of statutory grounding, calling it a “slim reed” that “any first-year law student” would know is entirely baseless.
Section 274a.12 is a part of the federal regulatory code that purports to allow for work permits for certain categories of illegal aliens, including recipients of deferred action. According to Eastman, “the regulation itself acknowledges [that] those provisions allowing for work authorization must be grounded in statutory authority.” That is, they must rely on legislative acts, such as the Immigration and Nationality Act (INA) passed in 1952. But none of the INA provisions cited in the regulation or by the DOJ, Eastman says, provide the necessary authority, a “must” under administrative-law principles. (See similar criticism regarding the IRS’s rule on Obamacare’s tax credits here.)
The statutory provision that permits this work-authorization regulation, according to the DOJ, is section 274A of the INA, added by the Immigration and Reform Control Act (IRCA) amendments of 1986. Section 274A provides exceptions to the general rule that it is unlawful “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” “Unauthorized alien” is defined as any alien not “lawfully admitted for permanent residence” or an alien not “authorized to be so employed by this chapter or by the Attorney General” (emphasis mine). Despite IRCA’s general rule against employing illegal workers, DOJ attorneys claim that this four-word phrase — “by the Attorney General” — lets the attorney general (now the DHS secretary) use the “regulatory process” to give himself unfettered discretion in granting work permits to any category of illegal aliens he chooses.
IRCA and other provisions of the INA allow for certain illegal aliens, such as refugees, to obtain legal-resident status; separately, there are other provisions that authorize or require the attorney general to provide those beneficiaries with work permits. According to Eastman, then, the logical interpretation of the phrase “by the Attorney General” is that it refers back to the detailed exemptions of section 274A, which, again, specifies when the attorney general may grant work permits. If this wasn’t the case, says Eastman, and Congress really intended to delegate complete discretion to the attorney general in granting work permits, “none of the pages and pages of carefully circumscribed exemptions would be necessary.”
This reading of the INA comports with that of Temple law professor Jan Ting. In testimony this month before Congress, Ting noted that since IRCA became law in 1986, Congress has on several occasions enacted legislation stipulating that the attorney general “may authorize” a class of aliens “to engage in employment in the United States,” such as aliens whose status was dependent on an abusive spouse (emphasis in the original). But “[w]hy would Congress,” he asked, “pass bills granting the Executive Branch discretionary authority to issue [work permits] to such narrowly defined categories of aliens if Congress had already empowered the Executive Branch in 1986 with discretion to issue [work permits] to anyone in the world?” Nevertheless, it is this four-word phrase that DOJ attorneys now use to claim that the INA confers upon Secretary Johnson unfettered discretion to use agency memoranda and policy guidance to ignore vast sections of immigration law. As Eastman writes, by taking out of context a short phrase from the INA, DAPA “ignor[es] the elaborate web of requirements for eligibility of lawful status [and work permits] that had been carefully constructed by Congress over decades.”
Moreover, in analyzing IRCA’s legislative history Eastman finds “no discussion whatsoever” of the four-word phrase “by the Attorney General” — a strange omission considering the sweeping authority it apparently provides. Eastman notes that in contrast, the IRCA’s provisions outlining the criteria for its legalization mandate were both “hotly contested” at the time and “finely wrought.”
Finally, there’s the DREAM Act, a bill introduced and rejected 24 times in Congress from 2001 to 2011. If the four-word phrase really provided the attorney general with such unfettered discretion, Eastman observes, then Congress was “wasting its time trying to push [the same amnesty] authority into law.” Crucially, “[i]f the President already had the unilateral power to impose the DREAM Act and beyond, why all the angst in Congress for over a decade of trying to get the bill passed?” Further, “[w]hy did the President himself claim in 2011 that he had no such authority, when just a year later he claimed to have it?”
Judge Hanen’s fine work has done much to reveal DOJ’s “yes-men” as the amnesty-enabling careerists that they are. But their puddle-deep legal pretext for Obama’s nation-transforming agenda needs to be fully exposed — for the good of constitutional order, the rule of law, and, most important, for the working citizens of this country.
— Ian Smith is an attorney in Washington, D.C.