Recently, law professors from around the country published a statement calling Judge Andrew Hanen’s decision to enjoin President Obama’s amnesty decrees “deeply flawed” and legally suspect.
In their letter, the professors target several passages from the February 16 opinion, including one questioning the Executive’s authority to apply deferred action on a mass scale. “The government must concede,” Judge Hanen wrote, “that there is no specific law or statute that authorizes DAPA.” But, the professors respond, “the government need not concede anything here, because there is strong legal authority for deferred action in general, and for DAPA and DACA in particular as forms of deferred action.” (Emphasis mine). To assert that deferred action needn’t have any statutory basis, the professors cite a Supreme Court decision from 1999, Reno v. American Arab Anti-Discrimination Commission. Their claim that Reno gives full enforcement-discretion to the Executive, is, however, in the words of attorney David Rivkin’s recent congressional testimony, “flat-out wrong.”
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The linchpin of the professors’ argument is a single line from the 21-page majority opinion in Reno, uttered by Justice Scalia peripheral to the case’s actual holding (mere ‘dicta’ in legal terms): “Congress has acquiesced to, and even endorsed the use of, deferred action on removal of undocumented immigrants by the executive branch on multiple occasions.” But context is key, and what the case actually decided is conveniently left out of the professors’ letter. The plaintiffs in Reno were members of a designated Palestinian terrorist organization who had been ordered deported by the INS. ACLU attorneys for the group argued that Congress had authorized judicial review of INS deportation decisions through the Immigration and Naturalization Act (INA). The INS’s refusal to defer the group’s deportations was, ACLU lawyers further argued, discriminatory.
The majority of the Supreme Court, led by Justice Scalia, disagreed, ruling that amendments made to the INA in 1996 were “clearly designed to give some measure of protection to [decisions refusing to grant deferred action]” and that “Congress didn’t want federal courts entertaining discrimination lawsuits from deportees based on a failure to grant deferred action.” The INS, the Court decided, could refuse to apply deferred action status to otherwise deportable aliens, and those decisions along with any attendant discrimination claims could not be reviewed by the courts. As Rivkin explained to the congressional panel, “The case merely acknowledged that Congress didn’t want federal courts entertaining discrimination lawsuits from deportees based on a failure to grant deferred action in a particular instance.” In direct conflict with what the professors assert in their letter, Rivkin concluded, “[the Supreme Court] didn’t consider or endorse the legality of the broader program of deferred deportation itself.” (A general history of deferred action can be found in a friend-of-the-court brief from the Immigration Reform Law Institute here.)
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Self-described liberal law professor and immigration attorney Peter Margulies agrees. In a recent law review article, Margulies scolds Obama’s Office of Legal Counsel and its supporters for basing so much of their “justification” of deferred action on mere dicta from Justice Scalia in what was really a decision about court jurisdiction. Margulies writes that the court’s decision was intended to protect the Executive’s discretion in setting enforcement priorities, so that the deportation process would not be elongated nor the immigration law framework undermined by groups like the ACLU. Deciding otherwise, he writes, would have created “the potential for piecemeal litigation” which was “antithetical” to Congress’s intent to avoid, as Scalia put it, “separate rounds of judicial intervention outside [the INA’s] streamlined process.” Margulies concludes that “to head off this train wreck,” the court found Congress had intended to “shield certain individual discretionary decisions from judicial review.” (Emphasis mine).
Peripheral to the case’s holding, Justice Scalia did observe that narrow, individualized applications of deferred deportation could encourage efficiency in INS’s administrative process. But he went out of his way to stress that deferred action was allowable only on such a narrow, individualized-basis:
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. . . . A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated. [Emphasis mine].
Oddly, the professors seem to say as much when they write that the “[Supreme Court] explicitly recognized “deferred action” as a form of prosecutorial discretion – namely, a choice to interrupt or abandon efforts of trying to deport someone by offering them temporary protection from deportation.” (Emphasis mine).
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#related#In reality, Reno was about the court-stripping provisions of the INA, and whatever affirmation the court gave to extra-statutory grants of deferred action were a) on a limited, individualized basis and b) mere dicta. Even case summaries from both the DOJ, which defended the suit, and the ACLU, which brought the suit, show that the issues presented to the court were narrow and procedural, and not about whether deferred action could be granted in the incredibly broad way President Obama now wants it to be.
Still, the case has had major implications. It laid a rickety foundation for the agency-wide memo, sent out by Clinton INS commissioner Doris Meissner, which created mass deferred action out of thin air and asserted that its application to whole categories of aliens would be immune to judicial review. This is what Obama’s DOJ is now trying to push on Judge Hanen.
Reading through the professors’ letter one finds a total lack of description of the actual case they put so much stock into. Instead of case law or statutory and regulatory provisions, they mostly cite each other’s law journal articles. It is the work of immigration anarchists in academia, and not Judge Hanen’s 123-page opinion, that should be seen as “deeply flawed.”
– Ian Smith is an attorney in Washington, D.C.