Obama Has Options on Immigration: Litigation Will Delay Executive Actions, But Won’t Stop Them

Twenty-six states, led by Texas, have convinced federal district court Judge Andrew Hanen to temporarily enjoin two important executive immigration actions—DAPA and the expansion of DACA—which President Obama announced in November of last year. DAPA is the “Deferred Action for Parental Accountability” initiative, which would grant a temporary reprieve from deportation, along with work authorization (known as an employment authorization document or “EAD”) for up to 3.7 million unauthorized immigrants if they have been present in the United States since 2010, are not an enforcement priority, and are the parent of a child who is a U.S. citizen or legal permanent resident. DACA is “Deferred Action for Childhood Arrivals,” announced in 2012, which grants similar relief from deportation and an EAD, but was created to protect younger unauthorized immigrants who entered the United States as minors. The original version of DACA from 2012 is not at issue in the litigation—only the expansion of DACA announced by the president, which could cover an estimated additional 300,000 persons.

I do not believe the 26 states will win on the merits of the case—either in the Fifth Circuit Court of Appeals or at the U.S. Supreme Court—and thereby end DAPA or expanded DACA, though some scholars and lawyers are arguing that they will. But it’s important to be clear about what Judge Hanen’s ruling means exactly. First, he ruled that states like Texas were likely to be harmed by the DAPA and expanded DACA initiatives because of the costs imposed on states by federal requirements when states issue driver’s licenses to unauthorized immigrants. Because of this potential harm, which could be redressed by the court ruling to stop DAPA/expanded DACA, Judge Hanen reasoned the states had standing to sue the government. Then, his legal reasoning justifying the injunction—which halts DAPA and expanded DACA while the merits of the case are litigated—was based on the states’ complaint that the government failed to comply with certain procedural rules in the Administrative Procedure Act (APA) when creating DAPA/expanded DACA. Because Judge Hanen believes the states are likely to win on their APA claim, he halted the government’s future implementation of DAPA and expanded DACA.

Judge Hanen’s opinion does not enjoin the Department of Homeland Security’s (DHS) immigration enforcement priorities or other executive immigration actions announced on November 20, 2014. Only the affirmative application process for deferred action under DAPA and expanded DACA are temporarily halted from getting underway. Yet even if the states ultimately prevail on the merits of their claims, it will only be a temporary victory, because the president has alternative means available to him that are legal and would achieve all or most of the goals of his DACA and expanded DACA initiatives. 

Based on Judge Hanen’s opinion, if the 26 states win, it’s likely to be because the Fifth Circuit Court of Appeals or the U.S. Supreme Court agrees with them that DHS did not comply with Section 553 of the APA. That provision requires the administration to first propose a rule and then allow the public to submit comments (data, arguments, etc.) about the proposed rule. When the administration issues a final rule under § 553 of the APA, the administration then “shall incorporate in the rules adopted a concise general statement of their basis and purpose,” and provide an analysis considering the comments offered by the public. The administration correctly chose to treat the two executive actions as internal guidance to DHS employees rather than as APA rules that required notice and comment.

Among the experts who doubt the administration will lose on the APA issue is Cass Sunstein, the regulatory czar during much of President Obama’s time in office. Nevertheless, for the sake of this thought experiment, let’s assume a scenario where the 26 states win on their substantive APA claim. Then what?

The answer is straightforward: The Obama administration can simply propose a DHS regulation stating that unauthorized immigrants who meet the criteria for DAPA or expanded DAPA will be eligible for a discretionary grant of deferred action. The regulation would not need to mention that deferred action recipients under the new regulation would also be eligible for an EAD, because under U.S. law and regulation, DHS already may grant an EAD to anyone who is subject to deferred action; the lawsuit does not challenge this authority. (I’ll say more about this below.)

One legal expert quoted in a Reuters report doubts the Obama administration would be willing to go this route:

There is no chance Obama would begin the notice-and-comment period now, because U.S. immigration policy would be frozen in place during the lengthy process, said Peter Margulies, an immigration expert at Roger Williams University School of Law in Rhode Island.

He said it could delay Obama’s policy for “a minimum of six to eight months, and potentially much longer.”

An attorney for the Service Employees International Union quoted in The Hill cited another reason: going through the rule-making process “could undermine Obama’s claims to prosecutorial discretion in future legal and political fights.” I disagree with the logic in both of these arguments.

Just because the APA notice-and-comment period and the overall regulatory process for DAPA and DACA might take six or eight months, or a whole year (it is unlikely that it would take longer than that), does not mean that going through the regulatory process is not a viable option for the president. As an ABC News report suggests, the current litigation is already “likely to take six months—or longer.” What’s a few more months, especially in light of the fact that this is one of the Obama administration’s most significant achievements, and one of the most beneficial actions it will ever take to help low-wage workers? It is unfortunate that potential beneficiaries of DAPA and expanded DACA might have to wait even longer to better integrate into American society and have legal rights in the workplace, but that’s still much better than never having the chance to do it at all.

Nor would the administration be conceding any legal ground. The president should just make it clear to the American people that he believes the APA rule-making process is unnecessary in this case and continue to fight it in the courts, while simultaneously going through the rule-making process so that less time is wasted in the event the courts get it wrong.

It is also vitally important to recognize that Judge Hanen’s opinion did not question the broad authority of the president to decide whom to deport and whom he can decline to deport. Judge Hanen objects to DAPA because it goes beyond a reprieve from deportation:

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.

Judge Hanen also concedes a few pages later that under the Homeland Security Act (HSA), DHS may legally set immigration enforcement priorities, but notes again that it cannot go a step further to confer other benefits:

The HSA’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security numbers, and travel in and out of the country.

The logical leap from declining to deport someone to issuing them work authorization—which Judge Hanen pushes back against and believes cannot be made—completely ignores an important provision in the Immigration and Nationality Act (INA). As I’ve written before, DHS has extremely broad legal authority to grant employment authorization to any unauthorized immigrant unless prohibited by statute. Congress granted this authority in 1986 via Section 274A(h)(3)(B) of the Immigration and Nationality Act (INA), and an entire section of the Code of Federal Regulations outlines who can apply for an EAD under this authority, including anyone who is subject to deferred action if they can demonstrate economic necessity.

I have yet to see anyone offer a convincing argument questioning this authority or making the case that the president has somehow exceeded it. Judge Hanen’s 123 pages never discuss this section of the INA, and he seems to have conveniently ignored it.

David Isaacson also explores the leap from deferred action to an EAD in a smart post that is worth a read. He concludes by saying that “Judge Hanen appears to have overlooked the proverbial elephant in the room,” meaning the ability to issue EADs under INA § 274A(h)(3)(B). I’ll go further and suggest what the president could do with this authority, since it provides him with another viable option to achieve similar ends that would benefit the DAPA and expanded-DACA-eligible population.

In a previous blog post, I explained how the president could issue EADs to the same unauthorized immigrants who would qualify for DAPA, even if they were not granted deferred action:

This matters because—completely separate from the issue of deferred action—it presents the president with an alternative means to achieve the same ends. He could, for example, promulgate a regulation allowing all aliens to apply for an EAD if they can demonstrate that they: 1) have not committed any serious crimes; 2) have been continuously residing in the country for at least 5 years; and 3) have an immediate relative (spouse or child) who is a U.S. citizen. After being granted an EAD, but without being granted deferred action, these unauthorized immigrants would still be deportable, but could legally work in the United States. That, it seems to me, would be clearly legal, although admittedly an undesirable result because people who could legally work in the country could still be deported. That would allow employers to threaten their unauthorized immigrant employees with deportation if they ever ask for a raise or complain about unpaid wages or unsafe working conditions (even more than they do now, that is, because immigrants would have even more at stake). However, on the other hand, under the Morton Memos, which set out the administration’s deportation priorities, those EAD-holders (who would necessarily already have clean criminal records, a lengthy period of residence in the United States, and U.S. citizen immediate relatives), would be so far down on the list of deportation priorities, that they’d be unlikely to be deported from the interior. This wouldn’t be the same as having an official grant of deferred action, but they could be reasonably certain that they would not be detained and deported. I think this is a less-likely scenario, but it is a legal one.

Since this was written, DHS has issued a more recent memorandum, known as the “Johnson Memo” which details its new immigration enforcement priorities and supersedes those listed in the Morton Memos. Those new priorities are updates and refinements of the ones described in the Morton Memos, and similar enough not to change the analysis. While unauthorized immigrants who qualify for an EAD in this scenario would technically still be deportable, anyone meeting the three listed requirements is also unlikely to be deported from the interior of the United States because they would not fall under the enforcement priorities outlined in the Johnson Memo. As evidence for this, consider that the number of unauthorized immigrants with clean criminal records who were deported from the interior of the United States in 2013 was only 17,000 out of 11 million, and we can reasonably expect this to be lower under the Johnson Memo and after the shift from DHS’s Secure Communities enforcement dragnet to the Priority Enforcement Program is complete.

This doesn’t offer as much certainty for the DAPA and expanded-DACA-eligible population as an affirmative application process for deferred action would, but DHS can take additional steps to mitigate this uncertainty. For example, whenever the government’s deportation machinery encounters an unauthorized immigrant who qualified for and has an EAD under the new regulation, DHS can decline to deport them based on its enforcement priorities—and instruct immigration agents that an EAD issuance should be considered strong evidence that the immigrant is not an enforcement priority—so that DHS can focus its resources on deporting criminals instead.

The administration has recently announced it will request a stay of Judge Hanen’s preliminary injunction, but it is far from clear that a stay will be granted at any level of the judiciary. Therefore, DAPA and expanded-DACA eligible immigrants should prepare themselves for the possibility that the lawsuit in Texas will delay the president’s smart new immigration enforcement policies for 6 months to a year. But the law is on the side of the president, both in and out of court. In addition to the legal options I’ve explored, the president has others at his disposal. For example, legal scholar Eric Posner has written that the president could issue an executive order or give immigration agents more discretion when adjudicating DAPA applications.

So far it’s clear that the only arguments against DAPA and DACA that are getting traction—even from a sympathetic, handpicked judge who is willing to ignore key applicable sections of the law—are procedural and not substantive. That means that ultimately, the only thing DAPA’s opponents can do is create delays—and perhaps that’s the idea. It’s also possible that if DHS publishes a DAPA regulation under APA notice-and-comment, there may be further delays as a result of new litigation. But the president should recognize this and be willing to take the alternative legal and regulatory routes available to him to protect the unauthorized immigrants who arrived in the United States as children or who have children who are U.S. citizens or legal permanent residents.