Official estimates place the number of undocumented immigrants in the United States between eleven and twelve million. Congress has only appropriated enough resources to the Department of Homeland Security (“DHS”), however, to process and deport about four hundred thousand of these individuals in any given year. The allocation of limited resources and the corresponding decision of what enforcement to prioritize has traditionally been a matter of agency discretion unreviewable by courts of law. At what point, though, does this sort of policy become a substantive rule that infringes on legislative power?
That was the question on everyone’s mind during Wednesday’s panel discussion of United States v. Texas. The case centers on the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) policy announced by President Obama in November of 2014. Under the program, undocumented parents of American citizens and lawfully present immigrants who have lived in the United States since 2010 are granted “deferred action” status, making them eligible for a renewable three-year work permit and exemption from deportation. In December of 2014, twenty-six states filed suit to block implementation of the policy in the United States District Court for the Southern District of Texas. The court granted a preliminary injunction enjoining the government from putting the policy into effect while the case is litigated, and a divided panel of the Fifth Circuit affirmed the ruling on appeal. In January 2016 the Supreme Court agreed to review the case.
Hosted by the George Washington Law Review’s On the Docket, Wednesday’s event featured insight on the case from three prominent experts on administrative and constitutional law. The two official panelists, Professors Joshua Schwartz and Jonathan Siegel, both represented the United States Government in appellate and Supreme Court cases in their former careers, working respectively in the Solicitor General’s Office and the Civil Appellate Division of the Department of Justice. The moderator, Dean Alan Morrison, co-founded the Public Citizen Litigation Group and has argued more than twenty times before the Supreme Court, including in INS v. Chadha, a case that invalidated more federal statutes than any other in American history.
Professor Schwartz began the panel with an opening statement that highlighted the divide he perceives between modern political conservatism and traditional legal conservatism. United States v. Texas is unquestionably a case with politics at its core; the executive action came only after years of failed attempts by the Democratic administration to pass immigration reform through a Republican-controlled Congress, and all twenty-six states challenging the policy are headed by Republican governors. Yet the legal arguments presented by the politically-conservative challengers are at odds with historic notions of judicial restraint central to legal conservatism, Schwartz contended. The plaintiffs argue against a strong, unified executive and strict standing requirements while advocating a role for the courts in excess of that originally intended by the framers of the constitution. Rather, Schwartz submitted, the ostensibly conservative judges should emulate Chief Justice Roberts role in National Federation of Independent Business v. Sebelius, a similarly political 2012 challenge to the Obama administration’s signature healthcare legislation. Though the case ended with an endorsement of the core legislation that represented a political victory for the liberals in office at the time, Schwartz claimed that history will come to view it as a conservative triumph for the limiting principles opinion espoused.
Following these initial remarks, the panel turned to the question of standing. As a general principle, standing is constitutional requirement that limits the power of courts to only cases brought by a party who has experienced a concrete, particular injury at the hands of the defendant that can be cured by a favorable ruling. The federal government argues in United States v. Texas that none of the challengers are able to meet this requirement because the states cannot demonstrate any negative effect on them that directly results from the DAPA policy. At trial, the district court disagreed. Because the fee Texas charges to applicants for driver’s licenses covers only a small portion of the total cost of processing and issuing the licenses, the court found that the DAPA policy will directly result in the expenditure of state funds when newly authorized individuals invariably apply to be licensed drivers, satisfying the requirement for injury-in-fact.
Dean Morrison was skeptical of this reasoning. The Supreme Court generally applies a very strict standard to standing when the government is the party being sued. As evidence, Morrison pointed to 2013’s Clapper v. Amnesty International, in which plaintiffs were held unable to challenge a surveillance program that the government acknowledged existed because they could not prove that the National Security Agency had intercepted their particular communications. Further, the “zone of interest” doctrine has historically restricted standing to those injuries related to the claim at issue, and the government argues here that the license subsidies are ancillary to the program as a whole. An audience member, former Supreme Court Clerk and Office of Legal Counsel Attorney Bradford Clark, would later contest this point, arguing that the Court had granted states “special solicitude” to challenge government policy in 2015’s Michigan v. EPA. Professor Siegel stepped in to distinguished the two cases, though, pointing out that Michigan had established scientifically that the policy in question directly led to the erosion of its coasts, while Texas’s injury might be regarded as a “self-inflicted would” because its adoption of the licensing subsidies was purely voluntary.
The panel next considered the merits of the actual challenge. The plaintiffs case revolves primarily around section 553 of the Administrative Procedures Act (“APA”), which requires an agency to follow certain “notice and comment” procedures when it issues a rule. The statute makes exceptions, though, for “general statements of policy.” As Professor Siegel pointed out, the distinction between a policy statement and a substantive rule has never been fully adjudicated before the Supreme Court, notwithstanding the APA’s seven-decade history. During the 1970s, the Court of Appeals for the D.C. Circuit took the position that an agency has discretion to specify when a pronouncement is a general statement of policy, but such a statement may not then be used against any party in an enforcement action. More recently, though, courts are held that a policy statement may not be binding on the agency itself either, and must allow individual officials to exercise their discretion.
Whether DAPA meets this latter requirement is a matter of contention. The government points to language in the order that indicates that it is discretionary and allows DHS officials to exercise their judgement as to whether other grounds exist to justify an individual’s deportation. The Fifth Circuit, however, claimed that this is a pretext, and they are supported in this assertion by an amici brief filed by a union representing DHS employees. Professor Siegel was dubious of the Fifth Circuit’s statements on the matter; because the policy was enjoined before it could have been implemented, there was no way for the court or the union to truly know if it would be treated as discretionary. The scrutiny may be misplaced, however. He contended that the challenge should focus not on the deportation policy, which is concerns entirely the allocation of agency resources, but rather on the work authorizations, which affect the substantive rights and obligations of parties outside the agency. This claim was supported by Professor Schwartz, who noted that the APA’s judicial review provisions explicitly contemplate the possibility of partial review by making agency actions reviewable “to the extent necessary”.
Dean Morrison doubted, however, that even this more targeted objection was valid for three reasons. First, the policy of allowing work permits to those whose deportation has been deferred has been in effect for decades and enjoys the implicit authorization of Congress. Second, the challengers repeatedly refer to the work authorization as a “benefit” in their briefs, and section 553 of the APA explicitly exempts decisions regarding benefits from notice and comment requirements. Though Morrison was not confident the Court would accept this broad reading of the benefit exemption, he felt that it was a point of argument worth raising. Lastly, the Texas driver’s license subsidies are even further removed from the work permit requirement than the general stay on deportation, and thus the plaintiffs standing is further undermined under this theory of the case.
Lastly, the panel turned to the question of the “Take Care Clause.” Article II of the Constitution specifies that the President must “take care that the laws be faithfully executed.” The history of this clause at the time of the framing is largely unknown, but it has been used primarily as an argument for the “unitary executive”, a theory under which the President retains complete control and removal power over all officials within the executive branch. The issue was not argued at trial or on appeal, but in granting review the Supreme Court requested that the parties brief whether the clause limited the President’s authority to avoid prosecuting individuals whom all involved acknowledge have broken the law.
Professor Schwartz doubted that the clause carried any true legal meaning in itself. Referring to it as a tautology, he argued that an action must defy some other provision of the law in order to violate the Take Care Clause, rendering it largely redundant. Professor Siegel disagreed, arguing that to the extent it means anything, it may impose a duty on the President to go out and actively enforce the law. Under this reading, if the President’s failure to fulfil his duty is costing Texas money, it may create the standing that was found so elusive under other interpretations of the case.
As a final matter, Dane Shikman, Editor in Chief of the George Washington Law Review, inquired as to the panel’s ultimate prediction for the case. All three members forecasted a reversal, either on the merits or procedural grounds.
Post authored by On the Docket Fellow Spencer McCandless
