Bench Memos

The Fifth Circuit’s Decision in Texas v. United States

As I reported yesterday morning, the Fifth Circuit ruled yesterday in favor of the state of Texas, 20 states, four governors, and one state AG who brought suit to enjoin the Obama Administration’s plan to transform immigration policy by executive fiat. The Court’s majority opinion by Judge Jerry E. Smith carefully avoided breaking new ground, instead focusing on the narrow technical grounds raised by the district court.  The Administration has already announced its intention to seek an appeal to the Supreme Court, and there’s a good chance the Court will take it. 

Earlier this year, the lower court ordered the Administration not to proceed with its immigration program lans on narrow procedural grounds, finding that the new policy — which was imposed by agency memorandum, not by rulemaking – was a substantive change of law that required the agency to provide public notice of the change and allow the public an opportunity to comment. Although the Administration quickly sought to appeal the injunction, the Fifth Circuit denied its request to stay the injunction while the case was on appeal. 

The programs challenged by the states — the expanded version of Deferred Action for Childhood Arrivals (expanded DACA) and  Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) — all create “lawful presence,” as the district court found, despite the absence of statutory authority. The Fifth Circuit affirmed that granting lawful presence grants practical benefits to applicants that range from  transfer payments to work authorization (all citations omitted):

“Lawful presence” is not an enforceable right to remain in the United States and can be revoked at any time, but that classification nevertheless has significant legal consequences. Unlawfully present aliens are generally not eligible to receive federal public benefits, or state and local public benefits unless the state otherwise provides. But as the government admits in its opening brief, persons granted lawful presence pursuant to DAPA are no longer “bar[red] . . . from receiving social security retirement benefits, social security disability benefits, or health insurance under Part A of t​he Medicare program.” . . . A lawfully present alien is still required to satisfy independent qualification criteria before receiving those benefits, but the grant of lawful presence removes the categorical bar and thereby makes otherwise ineligible persons eligible to qualify. . . . The district court determined―and the government does not dispute―“that DAPA recipients would be eligible for earned income tax credits once they received a Social Security number.”

The government had challenged the states’ standing to raise its objections to its changes to lawful status in the form of expanded DACA and DAPA. But the Court rejected that argument because the change of lawful status triggers the granting of state benefits, specifically since Texas law does not issue state-subsidized driver’s licenses to aliens without lawful presence. Enlarging the category of aliens with lawful presence thus imposes a cost on Texas, giving the state a stake in the outcome of the litigation, which is all that is necessary to show standing. 

Ironically, the Supreme Court paved the way for this sort of challenge in Massachusetts v. EPA (2007), which gave what it called “special solicitude” to the state’s sovereign interests and found that Massachusetts had standing to sue the EPA because it could lose some shoreline due to global warming, even over several decades. The Court then reinforced the Massachusetts path in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) just last Term, holding that a state legislature could sue another state entity as an institutional plaintiff asserting an institutional injury. Compared to the basis for standing in Massachusetts, the burden of DAPA on Texas is far less speculative and much more concrete.

Having established that Texas has standing to bring suit and that the government is acting (not merely refusing to act), the Fifth Circuit then addressed the question of whether there are statutory grounds for refusing review, both under the Immigration and Nationality Act, which has several specific provisions that preclude review, and the Administrative Procedures Act (APA), which much more generally permits judicial review of “agency action.”

Importantly, the court concluded that DAPA is a form of action, not merely refusal to act. This is so because what DAPA terms “deferred action” actually does declare that a person becomes “lawfully present” in the United States, and the evidence before the Court below showed that the government did so categorically, not on a case-by-case basis. As the Court explained:

Deferred action, however, is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act—and state benefits—for example, driver’s licenses and unemployment insurance—that would not otherwise be available to illegal aliens. . . . Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence. “[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.

Notably, the Court points out in footnote 108 that because DAPA is not an exercise of enforcement discretion, it need not reach the issue of whether the states had rebutted the presumption of rebuttability required by Heckler v. Chaney (1985), which only applies to nonenforcement decisions.  

On the merits, the Court’s analysis is workmanlike and tightly-reasoned. Noting that the government doesn’t dispute the nature of DAPA as a “rule,” the Court rejects the Administration’s characterization of DAPA as a “policy statement” not subject to notice and comment. It finds this conclusion by noting that DAPA’s predecessor, DACA, was a nearly-categorical grant of “lawful presence” in which case-by-case discretion was “merely pretext” and officials who disobeyed the policy would face negative consequences. The DAPA memo instructed officials to run DAPA similarly. Thus both the procedural and substantive APA claims were likely to succeed.

The court also affirmed on the alternate ground that DAPA is “manifestly contrary to the [INA].” This section is particularly important because it lays out in gory detail the extent to which DAPA’s reach exceeds the authorities granted by Congress (and even noting that it would fail the Chevron test even if it were ambiguous). There is simply no correspondence between the INA’s provisions and the substantive changes that would be worked by DAPA, so it’s good to see the Court laying it out.

Interestingly, we are also seeing a reappearance of the argument raised by Chief Justice Roberts last Term in King v. Burwell (2015), that DAPA implicates “questions of deep ‘economic and political significance’” that Congress surely would have assigned to an agency explicitly had it intended to do so. The Court concisely rejects the lengthy dissent’s attempt to spin government overreach into a congressional acquiescence: “To the contrary, any such inaction cannot create such power.” Well put.

In dissent, Judge Carolyn Dineen King mainly focuses on standing, although she also suggests that DAPA is merely agency inaction and prioritization and therefore unreviewable. Like the majority opinion, the dissent focuses on the procedural issues, and inevitably the discussion is laced with her disagreement with the majority’s interpretation of the DAPA memo and the INA. The dissent nitpicks the district court’s factual findings (many of which were based on its failure to bring forward evidence), but it’s important to remember that the case was before the Fifth Circuit on a preliminary injunction, not a trial on the merits that Could fill in the gaps in the record. Another problem is that the dissent spends a great deal of time opining on the merits of legal theories proposed by the district court that were not relevant to the majority’s analysis, so it is not clear what Judge King was up to.

With the Administration seeking Supreme Court review, there’s a very good chance the Supreme Court could have this case decided by the end of June 2016, right in the middle of the presidential campaign season. If the Supreme Court grants cert, the mere fact of a decision – regardless of the result – will remind Americans yet again about the central role that the Supreme Court plays in preserving the Constitution and the rule of law. 

Congratulations to the state AGs who stepped up to challenge President Obama’s lawlessness, especially former Texas Attorney General (now Governor) Greg Abbott and his Deputy Solicitor General Andy Oldham, and later newly-appointed Solicitor General Scott Keller, all of whom have handled the case brilliantly. Also worthy of mention is Nevada AG Adam Laxalt, who entered the case despite strong opposition from the Nevada Governor, liberal Republican Brian Sandoval. These public officials are once again demonstrating the truth in Fred Barnes’s assessment that they “have done more than Republicans in Congress, statehouses, or anywhere else to block, cripple, undermine, or weaken Obama’s initiatives.” 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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