On Tuesday, a federal appeals court kept in place an injunction preventing President Obama from implementing his executive action on immigration, known as DAPA. The majority opinion, by Judge Jerry E. Smith, recognized the administration’s policy for what it is: the suspension of deportation for 4 million aliens, designed to trigger federal benefits including work authorization. In stark contrast, Judge Stephen A. Higginson, in his dissent, refused to appreciate the circumstances surrounding the policy, limiting his consideration to the “four corners” of the published DAPA memorandum. As I’ve discussed before on NRO, and in legal briefs, the courts must confront and engage with the fact that DAPA is a brazen effort by President Obama to bypass Congress.
According to the Justice Department, DAPA is nothing more than a humdrum application of prosecutorial discretion, no different from the longstanding policy of not prosecuting defendants in federal court who were already convicted in state court. In the Justice Department’s view, DAPA simply allows the president to put the deportation of felons first, and delay deporting families, pursuant to longstanding congressional authorizations. It’s all about conserving resources, the government insists. This understanding of the policy requires a massive suspension of disbelief. In reality, DAPA amounts to a systematic effort by the president to accomplish as much of his rejected immigration policy as possible through executive fiat.
In a healthy reality check, the Fifth Circuit recognized that the controversy over DAPA did not emerge because the secretary of Homeland Security decided, “at least temporarily, not to enforce the immigration laws as to a class of what he deems to be low-priority aliens.” In fact, “if that were all DAPA involved,” Judge Smith observed, “we would have a different case.” Rather, DAPA is “more than nonenforcement: It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens.” This new status “triggers eligibility for federal and state benefits that would not otherwise be available,” ranging from work authorization to Social Security to the earned-income tax credit.
This is the crux of the legal challenge brought by Texas and two dozen other states. No one is alleging that the president has to deport all aliens who are here illegally — though the dissent suggests that this is the plaintiffs’ argument. Nor is anyone arguing that the president has no discretion over whom to deport. In fact, nothing in the court’s decision puts any limitation on whom the president can deport, or choose not to deport. At issue in this case is the fact that parents of minors who are U.S. citizens are given quasi-legal status in an effort to get them “out of the shadows,” in clear opposition to congressional policy. While helping people “out of the shadows” may be a laudable policy goal, the president lacks the power to do it unilaterally.
While helping people “out of the shadows” may be a laudable policy goal, the president lacks the power to do it unilaterally.
Defenders of DAPA insist that offering work authorization is part of what is known as deferred action, and they contend that Congress actually has given the Department of Homeland Security the power to offer these benefits. The Fifth Circuit wisely sees through this argument. If Congress had given the president the hitherto unknown and unbounded power to “[make] 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits,” then the court “would expect to find an explicit delegation of authority.” However, “no such provision exists.” As a 2000 decision of the U.S. Supreme Court put it, Congress does not “hide elephants in mouseholes.” And as the Supreme Court recognized last year, “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism.” If Congress had intended to give DHS this unprecedented dispensing power, it would have done so directly. To the contrary, both houses of Congress have voted to register their opposition to this executive action. DAPA is contrary to, not consonant with, congressional actions. As a result, to borrow words written by Justice Robert H. Jackson, the executive action “must be scrutinized with caution.”
The majority of the Fifth Circuit based its decision about DAPA, which has yet to go officially into effect, on its 2012 antecedent, DACA (Deferred Action for Childhood Arrivals). DACA halted the deportation of 1 million “Dreamers” — certain minors brought to the U.S. unlawfully; they are called Dreamers because, if Congress had passed the DREAM Act, it would have provided a pathway to citizenship for them, along with work authorization. Under DACA, prosecutorial discretion amounted to a rubber stamp, with a 95 percent rate of granting deferrals. Much to the Fifth Circuit’s frustration, notwithstanding “200 pages of briefing over a two-month period,” the government remains unable to identify a single denial of benefits for purely discretionary reasons beyond the secretary’s directives. This is no accident.
While there are certainly some differences between DACA and DAPA, DHS Secretary Jeh Johnson “direct[ed] USCIS [the U.S. Customs and Immigration Service] to establish a process, similar to DACA, for exercising prosecutorial discretion.” By “extrapolating from the implementation of DACA,” Judge Smith concluded, there is “evidence” that DAPA would not “allow for discretion, regardless of the approval rate.” This is the pivotal conclusion that guided the court to keeping the executive action on ice. In light of the way that DACA has been implemented, we know all too well how DAPA would work.
Judge Higginson, noting that “the political nature of this dispute is clear,” concludes that he “would not affirm intervention and judicial fiat ordering what Congress has never mandated.” This gets it exactly backwards. By disregarding the history and circumstances that led to the establishment of the policy, Judge Higginson is content to reside in DAPA fantasyland. Applying even the most lax scrutiny to DAPA leads to the conclusion reached in the workmanlike and methodical majority opinion: DAPA amounts to a massive change in policy, which Congress has never sanctioned, and the administration should make its case to the American people before granting a quasi-legal status to 4 million aliens.
As this case hurtles toward the Supreme Court, we must keep in mind the courts’ crucial role as what Alexander Hamilton referred to in Federalist No. 78 as “bulwarks of a limited Constitution.” The courts must engage with the entire gestalt of DAPA to ensure that the president’s actions comport with his statutory and constitutional authority. With the injunction in place, the federal government should publicize the policy before it goes into effect, and seek comments from the American people about how it will, and whether it should, operate.
— 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 Texas v. United States, supporting the plaintiffs, on behalf of the Cato Institute.