Bench Memos

Texas District Court Enjoins Immigration Nonenforcement Order

Last night, a district court in Texas ordered a halt to the Obama Administration’s program (Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA) that offers licenses and work authorization to illegal immigrants who identify themselves to authorities. The state of Texas and numerous other states filed a federal lawsuit against the program last December under the Constitution’s Take Care Clause and the Administrative Procedure Act (APA). I’ve mentioned this case before, and law professor Josh Blackman has been watching the case closely.

In short, the district court opinion held that by creating the nonenforcement program, President Obama was enacting a “substantive rule” that failed to comply with the APA’s procedural requirements, thus allowing the court to enjoin the program. Other notable legal holdings are that the state of Texas has standing to challenge the rule under both a proprietary harm theory (it must shoulder various costs and fees associated with issuance of legal documents to DAPA beneficiaries) and under “abdication standing.” Below I outline the district court’s 123-page opinion (removing citations and footnotes for clarity) and give a few concluding thoughts. 

As background, DAPA is the Obama Administration’s second nonenforcement/work authorization program. The first was a 2012 program called Deferred Action for Childhood Arrivals (DACA), an asserted exercise of executive discretion to refuse deportation of immigrants who were illegally brought to the United States as children. DAPA expands nonenforcement to a broader class, applying to certain family members of children born in the United States to illegal immigrant parents. Shortly before the second action, the Administration chose to release a memo explaining OLC’s legal argument in favor of the President’s power to create this program.

The first question before the Court was that of standing. The court found that Texas would suffer harm from DAPA because the new legal status (I think this results from the issuance of work authorization) triggers eligibility under Texas law for driver’s licenses, which are provided below-cost to applicants. Also:

Setting aside these legal questions, this all-or-nothing choice-that Texas either allow the DAPA beneficiaries to apply for driver’s licenses and suffer financial losses or deny licenses to all individuals that rely on employment authorization documentation-is an injury in and of itself. An injury cannot be deemed “self-inflicted” when a party faces only two options: full compliance with a challenged action or a drastic restructure of a state program.

These arguments for standing are straightforward, but the district court also found that the plaintiffs could bring the suit under “abdication standing,” which comes from language in Heckler v. Chaney (1985) that distinguishes a “a situation where it could justifiably be found that the agency has ‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” The Court applied Heckler thusly:

In the present case, Congress has clearly stated that illegal aliens should be removed. Like that at issue in Adams, the DHS program clearly circumvents immigration laws and allows individuals that would otherwise be subject to removal to remain in the United States. The policy in Adams purported to seek voluntary compliance with Title VI. In contrast, the DHS does not seek compliance with federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country’s immigration law. Assuming that the concept of abdication standing will be recognized in this Circuit, this Court finds that this is a textbook example.

The APA holding is particularly interesting.  The Court determines that DAPA is different from simple refusal to act:

First, the Court finds an important distinction in two terms that are commonly used interchangeably when discussing Heckler’s presumption of unreviewability: “non-enforcement” and “inaction.” While agency “non-enforcement” might imply “inaction” in most circumstances, the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as “non-enforcement,” it is actually affirmative action rather than inaction. . . . Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. Absent DAPA, these individuals would not receive these benefits. . . .

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that-not enforcing the law. Nonenforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations. This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such “non-enforcement” decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual. Not only does this proposition run afoul of traditional exercises of prosecutorial discretion that generally receive judicial deference, but it also flies in the face of the very concerns that informed the Heckler Court’s holding. This Court finds the DHS Directive distinguishable from the non-enforcement decisions to which Heckler referred, and thus concludes that Heckler’s presumption of unreviewability is inapplicable in this case.

The Court goes on to find that even if Heckler’s presumption of unreviewability were applicable to this case, the statute amply rebuts it by imposing a nondiscretionary obligation. With that in mind, the Court holds that DAPA amounts to a substantive change of regulatory authority under the APA, not merely a refusal to act. In part, this is based on the President’s own words:

What is perhaps most perplexing about the Defendants’ claim that DAPA is merely “guidance” is the President’s own labeling of the program. In formally announcing DAPA to the nation for the first time, President Obama stated, “I just took an action to change the law.” He then made a “deal” with potential candidates of DAPA: “if you have children who are American citizens … if you’ve taken responsibility, you’ve registered, undergone a background check, you’re paying taxes, you’ve been here for five years, you’ve got roots in the community- you ‘re not going to be deported . If you meet the criteria, you can come out of the shadows … . “


In stark contrast to a policy statement that “does not impose any rights and obligations” and that “genuinely leaves the agency and its decisionmakers free to exercise discretion,” the DAPA Memorandum confers the right to be legally present in the United States and enables its beneficiaries to receive other benefits as laid out above. The Court finds that DAPA’s disclaimer that the “memorandum confers no substantive right, immigration status, or pathway to citizenship” may make these rights revocable, but not less valuable. While DAPA does not provide legal permanent residency, it certainly provides a legal benefit in the form of legal presence (plus all that it entails )-a benefit not otherwise available in immigration laws. The DAPA Memorandum additionally imposes specific, detailed and immediate obligations upon DHS personnel-both in its substantive instructions and in the manner in which those instructions are carried out. Nothing about DAPA “genuinely leaves the agency and its [employees] free to exercise discretion.” In this case, actions speak louder than words.


In sum, this Court finds, both factually based upon the record and the applicable law, that DAPA is a “legislative” or “substantive” rule that should have undergone the notice-and comment rule making procedure mandated by 5 U.S.C. § 553. The DHS was not given any “discretion by law” to give 4.3 million removable aliens what the DHS itself labels as “legal presence.” In fact the law mandates that these illegally-present individuals be removed. The DHS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even nonenforcement of this nation’s immigration scheme. It inflicts major costs on both the states and federal government. Such changes, if legal, at least require compliance with the APA. The Court therefore finds that, not only is DAPA reviewable, but that its adoption has violated the procedural requirements of the APA. Therefore, this Court hereby holds for purposes of the temporary injunction that the implementation of DAPA violates the APA’s procedural requirements and the States have clearly proven a likelihood of success on the merits.

The Obama Administration has repeatedly refused to recognize, much less obey, the Constitution’s separation of powers. But as every high school student learns, Congress creates the laws and the President executes them. This Administration has now elevated lawlessness to high art, whether by rewriting Obamacare, refusing to enforce the laws, or even, as the Court held in this case, creating laws from scratch.  

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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