I’ve written before about the debate over the constitutionality of President Obama’s deferred deportation program. Here is a neat little video explaining that program:
On Monday of last week, U.S. District Judge Andrew S. Hanen (TX, 5th Circuit) granted an injunction against the Obama administration’s program while a lawsuit filed by 26 states challenging it was being decided. Judge Hanen did two things in his opinion worthy of note. First, he declared that, although agency inaction is generally a matter in which courts are to defer to agency discretion, DHS’s affirmative directive not to enforce a legal provision is distinguishable from mere inaction:
While the Court recognizes… that the DHS possesses considerable discretion in carrying out its duties under the INA, the facts of this case do not implicate the concerns considered by Heckler such that this Court finds itself without the ability to review Defendants’ actions. 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.
The Supreme Court’s concern that courts lack meaningful focus for judicial review when presented with agency inaction (see Heckler, 470 U.S. at 832) is thus not present in this situation. 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. The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for “administrative convenience.” Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any “focus for judicial review.” See Heckler, 470 U.S. at 832.
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. Non-enforcement 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.
Next, Judge Hanen determined that the enabling legislation left discretion only as to the means of deportation and not as to whether the specified persons were to be deported:
The DHS’ job is to enforce the laws Congress passes and the President signs (or at least does not veto). It has broad discretion to utilize when it is enforcing a law. Nevertheless, no statute gives the DHS the discretion it is trying to exercise here. Thus, Defendants are without express authority to do so by law, especially since by Congressional Act, the DAPA recipients are illegally present in this country. As stated before, most, if not all, fall into one of two categories. They either illegally entered the country, or they entered legally and then overstayed their permission to stay. Under current law, regardless of the genesis of their illegality, the Government is charged with the duty of removing them. Subsection 1225(b)(1)(A) states unequivocally that the DHS “shall order the alien removed from the United States without further hearing or review….” Section 1227, the corresponding section, orders the same for aliens who entered legally, but who have violated their status. While several generations of statutes have amended both the categorization and in some aspects the terminology, one thing has remained constant: the duty of the Federal Government is to effectuate the removal of illegal aliens. The Supreme Court most recently affirmed this duty in Arizona v. United States: “ICE officers are responsible for the identification, apprehension, and removal of illegal aliens.” 132 S.Ct. at 2500.
Notably, the applicable statutes use the imperative term “shall,” not the permissive term “may.” There are those who insist that such language imposes an absolute duty to initiate removal and no discretion is permitted. Others take the opposition position, interpreting “shall” to mean “may.” This Court finds both positions to be wanting. “Shall” indicates a congressional mandate that does not confer discretion—i.e., one which should be complied with to the extent possible and to the extent one’s resources allow. It does not divest the Executive Branch of its inherent discretion to formulate the best means of achieving the objective, but it does deprive the Executive Branch of its ability to directly and substantially contravene statutory commands. Congress’ use of the term “may,” on the other hand, indicates a Congressional grant of discretion to the Executive to either accept or not accept the goal. Texas v. United States, (S.D. Tex. Feb. 16, 2015)
Despite the broadness of Judge Hanen’s opinion, his ultimate ruling was fairly narrow. He held that DHS should have (at the very least) followed a notice-and-comment procedure before making such a major change in its activities. If the notice-and-comment requirement is unfamiliar to you, see my post on agency rulemaking here. For a general discussion of the President’s power over administrative agencies, see my post here.
Of course, it is in fierce debates over public policy that these vital questions about separation of powers and procedural rules arise. Like many high profile court cases, the ultimate determination of questions about the role of executive agencies in our tripartite democratic system has consequences which extend beyond the settlement of the dispute between the conflicting parties or the context-specific public policy implications, as important as those matters might be in their own right. In the meantime, students of both immigration policy and the role of administrative agencies can learn a lot from the litigation as it unfolds. The Obama administration has vowed to appeal this decision. The President himself had this to say in response to the ruling:
Much recent attention has focused on a single court decision in Texas in response to a partisan lawsuit that delays some of these lawful, common-sense steps…I disagree with this judge’s ruling. Just yesterday, the Department of Justice asked the court for an emergency stay of this misguided decision, and it has already filed a notice of appeal. My administration will fight this ruling with every tool at our disposal, and I have full confidence that these actions will ultimately be upheld.
It’s time to end the era of manufactured crises, put politics aside and focus on doing what’s best for America. So while I will fight any attempt to turn back the progress we’ve made or break up families across our country, I welcome the opportunity to work with anyone who wants to build on the improvements we’ve put in place, and fix our broken immigration system once and for all.
Throughout our history, America’s tradition as a nation of laws and a nation of immigrants has continually shaped us for the better. If we renew that tradition, and build upon it for future generations, there’s no limit to what we can achieve.