Monday, May 16, 2016


On April 18, 2016, the U.S. Supreme Court heard arguments in a preliminary injunction suit brought by 26 states (led by Texas) against the Obama administration's 2014 DAPA and expanded DACA initiatives. These initiatives would offer approximately 4 out of 11 million unauthorized immigrants temporary relief from removal (protection from deportation) as well as temporary eligibility for employment authorization documents. More specifically, DAPA could benefit about 3.7 million parents of U.S. citizens and residents, while expanded DACA could benefit about 300,000 individuals who arrived in the U.S. as children -- in addition to the 1.2 million already eligible under the current DACA program.

Texas does not contest the President's claim that Congress has failed to allocate enough resources to deport 11 million people. Nor does it claim that the President, with record annual deportation numbers (around 400,000) achieved under his watch, has failed to properly use or exhaust allocated immigration enforcement resources. There is no challenge to the President's authority to re-organize those resources by prioritizing some immigration law violators over others (for example, serious criminals over DAPA-eligible violators), so that designated low-priority violators can be made officially immune from removal for a limited period of time (three years under the proposed initiatives).

Texas' core challenge to DAPA and expanded DACA is narrower: it claims that these initiatives would create, without Congress' authorization, brand new categories of "lawful status," as demonstrated by the issuance of employment authorization documents.

Texas claims a right (of standing) to bring this suit on grounds that it would likely suffer financial harm as a result of the President's initiatives, due in particular to the potential cost of issuing driver's licenses to otherwise-qualified applicants in the relevant population (as would likely be required -- certainly under current state statutes, and possibly under federal preemption or equal protection law).

On oral argument, Justice Sotomayor questioned the speculative nature of the alleged injury, especially given Texas' options to mitigate, defer or avoid anticipated costs, if any -- for example, by changing state driver's license laws and, if necessary, disputing any resulting federal challenges in court. Here Justice Roberts seemed to counter with the suggestion that even a mere imposition by the President upon the states of a need to adopt such cost-limiting measures would be injury enough. However, Justice Breyer warned against granting standing on such broad financial basis (especially given the high political stakes at play) as to open the floodgates to future litigation by states against the federal government. He convincingly supported this call to judicial restraint with a citation to Massachusetts v. Melon (a case denying states standing based on their citizens' general financial interest as taxpayers), and distinguished Massachusetts v. EPA (a case granting states standing based on their quasi-sovereign interest in the natural environment within their boundaries).

Turning to the merits, as Justices Kagan and Ginsburg helped highlight, the object of Texas' core challenge is difficult to pin down. It is very unclear how the claim that DAPA and DACA create new categories of "lawful status" would not equally apply to just any conceivable removal freeze initiative the President might undertake pursuant to the authority the state itself concedes he has. This is why Texas had to make DAPA and DACA's capacity to trigger employment authorization eligibility (however indirectly, in interaction with other federal regulations) the center of its argument -- as the element that constitutes or manifests the unprecedented unconstitutional executive overreach. But, as the U.S. Solicitor General aptly pointed out, there are precedents for executive grants of employment authorization without specific legislative authority to individuals explicitly excluded from the definition of "lawful status" (including millions of adjustment of status applicants, for example). Texas would reply that, unlike adjustment of status and other employment-granting programs, DACA and DAPA do not create a "bridge" between one legislatively-authorized status and another. But, as it pertains to past deferred action initiatives, this distinction seems questionable at best: eligibility for the 1987 and 1990 Family Fairness programs, for example, did not require applicant eligibility for any legislatively-created status either -- past or future.

There was substantial back-and-forth regarding the other similarities and distinctions between DAPA and DACA, on the one hand, and past deferred action programs, on the other. Each initiative has presented a slightly different combination of preceding or subsequent, specific or general, legislative authority or acquiescence (or lack thereof), with or without access to employment authorization. But arguably Texas failed to clearly show how President Obama's proposed initiatives resemble prior initiatives materially less than those resembled one another. (Besides, Family Fairness seemed to go directly against specific legislative intent in a way that DAPA and DACA do not.)

Furthermore, in terms of scale, it is certainly true that DAPA could affect an unprecedented number of unauthorized immigrants. (Expanded DACA is less vulnerable to this line of argument.) However, as Justice Sotomayor pointed out, Family Fairness affected a larger potential share of the total unauthorized immigrant population in its day... Why should the absolute number difference matter more? (And what deference does the Court owe the President in defining such criteria?)

This case's underlying questions of judicial restraint or executive overreach find common expression in one point that was unfortunately not explored at any length during oral arguments (except perhaps for a brief mention by Justice Kennedy, when he somewhat cryptically framed the core issue at hand as one of Congress needing to set the limits of executive discretion). Traditionally, courts have deferred very broadly to the discretion of any Executive agency in the enforcement of its mandate, unless Congress as a whole had previously expressly provided -- thus by statute -- "meaningful standards" to limit the scope of such discretion. But here, as Justice Sotomayor also pointed out, Congress has remained silent.

Finally, the President's initiatives were also briefly challenged on the more technical ground that they have failed to comply with the administrative rulemaking requirement of public notice and comment. However, the majority of administrative law experts who have officially weighed in on this question have explained why both programs fall under the well-established "general policy statement" exception to that requirement.

Judging from the above, there's just not enough to strike down DAPA and DACA. But. we'll see...

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