Block on Trump's Asylum Ban Upheld by Supreme Court
The Obama administration's deferred action plan for undocumented immigrants suffered another setback today, as a federal district judge in Texas issued a preliminary injunction ordering the administration to stop enforcing executive orders related to the Deferred Action for Parents or Americans and Lawful Permanent Residents (DAPA).
Over 123 pages, Judge Andrew Hanen agreed with 26 states that the Obama administration exceeded the scope of its statutory (but not constitutional) authority in creating DAPA.
Judge Andrew Hanen was careful to point out at the outset that the case was not about "amnesty," the Deferred Action for Children program, or the wisdom of the program itself ("or lack thereof," wrote Hanen, helpfully letting us know what he personally thinks of the policy, regardless of how irrelevant that opinion is to adjudicating the real issues).
So what are the issues here? First, whether states have standing. Second, whether DAPA violates the Take Care Clause of the Constitution. Third, whether the program is just "guidance" that DHS officials don't have to obey.
Unlike other courts to hear state claims against federal immigration policy, Hanen said that one state, Texas, could show standing through increased expenditures on driver's license issuances. Yes, that's right: The states' standing argument hinges on Texas driver's licenses. That's because courts won't grant standing when states claim they have to spend more money on law enforcement; state budgets are within state control, and it's their decision to spend more money on law enforcement or not. Issuing drivers licenses to immigrants covered under DAPA, on the other hand, is a DHS directive (sort of). (There's also an Administrative Procedures Act claim for standing, but this post can only be so long).
Charitably, Hanen said that the decision to prosecute someone, or not, for an immigration violation is wholly up to the Executive Branch; the states don't have one whit of input on the subject.
On the other hand, the states claim that DAPA was instituted without a formal notice-and-comment procedure, as required by the APA. Hanen found that DACA was a final agency action subject to review and that it infringed on a state's right to protect its own citizens. This second part is a bit of a stretch, but it has to do with the fact that the Supreme Court has consistently refused to let states enforce federal immigration laws. On the other hand, under DACA, the federal government is refusing to enforce certain immigration laws, making it impossible for state citizens to be protected. (Protected from what we don't know. There is little in the way of fact-finding in Hanen's order; he relies instead on facts about immigration gleaned from prior court opinions and law review articles).
The government argued that DAPA either was "non-enforcement" (which isn't reviewable) or constituted "guidelines" that aren't subject to the APA. Both of those characterizations seem to be without merit, as Hanen pointed out the difference between not enforcing a law and altering the way it's enforced: "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." And guidelines? Not really. DHS' words and acts suggest that DAPA isn't a guideline, but rather a required agency regulation binding on its employees and on the people served by DAPA.
Because Hanen got this out of the way using the APA, he declined to rule on the Take Care Clause issue. The order enjoins the administration from enforcing DAPA, at least as to Texas (remember those driver's licenses?). The Justice Department has said it will appeal the ruling to the Fifth Circuit.
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