Introduction

On November 9, 2015, by a 2-1 majority, a three-judge panel of the United States Court of Appeals for the Fifth Circuit, in a decision written by Judge Jerry Smith, upheld a District Court’s preliminary injunction against the implementation of the Deferred Action for Parents and Lawful Permanent Residents (DAPA) program, and against the expansion of the Deferred Action for Childhood Arrivals (DACA) program.

On November 20, 2014, President Barack Obama announced several immigration “executive actions,” including the creation of the DAPA program and the expansion of the DACA program [PDF version] (please follow this link to read the blog that I wrote about it at the time). The Department of Homeland Security (DHS) estimated that 90 to 180 days would be needed in order to institute procedures and guidelines for implementing/expanding the programs.

In the interim, the state of Texas, eventually joined by 25 other states, sued to block the implementation of DAPA and the expansion of DACA.1 On February 14, 2015, Judge Andrew Hanen of the United States District Court for the Southern District of Texas granted Texas’ and the other states’ request for a preliminary injunction [PDF version].2 After Judge Hanen declined to lift the injunction, the federal government asked the Fifth Circuit to do so. However, in the opinion that I will discuss in this blog post, the Fifth Circuit upheld the injunction [PDF version], and in certain aspects of its reasoning, went further than did Judge Hanen.3

The Fifth Circuit’s decision is sound, and strikes me as quite right on all of the key points. I will use this blog to first explain why the majority on the Fifth Circuit decided to uphold the preliminary injunction, the next steps in the litigation over DAPA and DACA, and my thoughts on why both the Fifth Circuit majority and Judge Hanen are spot on with their reasoning and decisions on these important issues.

Issues Addressed by the Fifth Circuit

The first question in this case was whether Texas has “standing” to sue. If either the District Court or the Fifth Circuit had found that Texas did not have standing to bring the lawsuit, the case would have been dismissed. However, for reasons that I will briefly explain both courts found that Texas had standing to bring the suit.

After determining that Texas had standing, the courts had to resolve whether an injunction against the implementation of DAPA and expanding DACA was warranted on any or all of the grounds advanced. First, Texas alleged that it would suffer injury if the preliminary injunction was not in place while the case is being litigated. Furthermore, Texas argued against the implementation of DAPA on three grounds:

1. DAPA violated the procedural requirements of the Administrative Procedure Act (APA) by not undergoing notice and comment rulemaking despite being a substantive rule;
2. The DHS lacked the legal authority to implement DAPA even if it had gone through notice and public comment;
3. DAPA is an abrogation of the President’s duty to “take Care that the Laws be faithfully executed.”4

Judge Hanen granted the preliminary injunction on finding that Texas was likely to prevail on its argument that DAPA was required to undergo notice and comment, but he did not reach the second and third grounds of Texas’ argument. The Fifth Circuit concurred with Judge Hanen on the first point, but it also held that Texas was likely to prevail in its argument that the government did not have the legal authority to implement DAPA. Neither court reached Texas’ third argument regarding the “take care” clause, so while it is an interesting question in its own right, I will not focus on it in this post.5

Texas has Standing to Sue

The question as to whether Texas had “standing” to sue occupies much of the majority’s analysis in the Fifth Circuit’s decision. “Standing” is a complicated and oft-debated legal concept worth multiple blog posts in and of itself, so I will limit the discussion of it in this post to its application in this specific case.6

Relying upon multiple Supreme Court decisions,7 the Fifth Circuit determined that to establish standing Texas was required to show that it would:

1. Suffer injury as a result of the implementation of DAPA;
2. That the “injury” is directly traceable to DAPA;
3. That a favorable decision could redress the injury.

The Fifth Circuit held that Texas met all three requirements. The Fifth Circuit primarily relied upon Texas’ showing that it would have to print approximately 500,000 driver’s licenses for aliens who would benefit under the proposed DAPA programs.8 Secondly the Fifth Circuit found that this injury was directly traceable to DAPA, as the vast majority of aliens who would benefit would not otherwise be eligible to obtain drivers licenses in Texas. Finally, Fifth Circuit held that a favorable ruling on the merits of the suit would redress these injuries. First, an injunction based upon the government’s failure to give “notice” and seek “public comment” would potentially make DHS reconsider the program. Second, a permanent injunction based upon Texas’ second argument, that the federal government lacks the legal authority to implement DAPA, would prevent Texas’ injury altogether.

Texas is Likely to Prevail on Notice and Comment

Texas’ first argument is based on its assertion that the federal government cannot implement DAPA without first subjecting it to a notice and comment period [PDF version].9 Texas based its argument on the assertion that DAPA is a “binding rule” for which there is no exemption from the notice and comment requirement under the Administrative Procedures Act. Conversely, the government argued that DAPA is a policy statement and, therefore, exempt from the notice and comment requirement.10

The Fifth Circuit evaluated the following criteria to distinguish policy statements from substantive rules:

1. Whether the rule “imposes any rights and obligations”; and
2. “genuinely leaves the agency and its decision-makers free to exercise discretion.”

Although DAPA Memo nominally confers discretion, Judge Hanen determined that it does not genuinely confer the discretion it purports to. The Fifth Circuit found that Judge Hanen did not err in his factual findings in support of this conclusion.

Similarities to DACA

In assessing whether DAPA would provide agency officials with real discretion, Judge Hanen examined the DACA memo and compared the language of the memo to DACA’s actual implementation. Judge Hahen found that, while the DACA memo instructed agencies to review applications on a case-by-case basis, this was “merely pretext” because only about 5% of the 723,000 applications that were evaluated at the time of his analysis had been denied. Judge Hanen also noted many instances of mandatory language in both the DACA and DAPA memos that left no room for agency discretion.11

The Fifth Circuit noted in its review that, while a memo can purport to grant discretion, a rule can be binding if it is applied in such a way that indicates that it is, in fact, binding. Both Judge Hanlen and the Fifth Circuit used ample evidence to demonstrate that this was the case with the DACA program. While the Fifth Circuit noted that a comparison between DACA and DAPA must be conducted carefully due to many differences between the two programs (e.g., DAPA is available to a much broader class of aliens, while DAPA has a few additional barriers to benefits), Judge Hanlen and the Fifth Circuit both noted that the DAPA Memo instructs United States Citizenship and Immigration Services (USCIS) “to establish a process, similar to DACA, for exercising prosecutorial discretion.” The District Court noted that Kenneth Palinkas, head of the USCIS union, stated that the DAPA memo, like DACA, functions to prevent USCIS officers from conducting case-by-case investigations of applications and thus ensures that applications are to be rubber-stamped.

Binding Rules and Notice and Comment Exemptions

Even if a rule is a “binding rule,” it may still be exempt from the notice and comment requirement. The APA provides that a binding rule is not required to undergo notice and comment if it is one “of agency, organization, procedure, or practice.”12

The Fifth Circuit affirmed Judge Hanen’s finding that DAPA did not fall under one of the exempt categories because it “[confers] lawful presence on 500,000 illegal aliens residing in Texas” and “forces the state to choose between spending millions of dollars to subsidize driver’s licenses and amending its statutes.” Furthermore, both courts found that DAPA changes the “substantive standards” under which agencies evaluate applications seeking immigration benefits, which in and of itself requires notice and comment without reference to the effects of the rule changes.

Texas is Likely to Prevail on the Underlying Illegality of DAPA

The Fifth Circuit decided to take an additional step in upholding the injunction and reach the question of whether Texas was likely to prevail in its argument that the DAPA would exceed the administration’s legal authority even if it did go through notice and comment. The Fifth Circuit found that DAPA is contrary to the Immigration and Nationality Act (INA) on multiple grounds, and thus that Texas was likely to prevail on this challenge as well as the notice and comment challenge.

The Fifth Circuit notes that Congress, through the INA, has limited explicitly the ways aliens in the country unlawfully may lawfully reside in the United States. Additionally, with regard to the purpose of the immigration laws, the Fifth Circuit noted that the Congress has stated that “It is a compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant in accordance with national immigration policy.”13

The opinion notes that Congress has identified narrow classes of aliens who are eligible for deferred action, but that there is nothing in the INA that suggests 4.3 million aliens who are unlawfully present in the United States but who would be eligible for lawful presence under DAPA would otherwise be eligible. In fact, in order to go from illegal presence to lawful immigration status based upon the immigration status of a U.S. citizen child who is at least 21 years of age, an alien must submit to multiple requirements, including leaving the United States and waiting for at least 10 years before applying for a family-based immigrant visa [see category].14 However, the Fifth Circuit noted that DAPA not only allows an alien parent of a U.S. citizen child or lawful permanent resident to obtain lawful status15 without submitting to any of the requirements in the INA (without regard to the age of the child), but that there is no provision in the INA for family sponsorship of a parent of a lawful permanent resident child. The Fifth Circuit also compared DAPA to another means of going from unlawful status to lawful status, cancellation of removal [see article], and found that DAPA was again far more permissible than the remedy approved by Congress in the INA.

Furthermore, the Fifth Circuit addressed DAPA’s provisions to allow for employment authorization, and found that at no time has Congress authorized making the class of aliens eligible for DAPA benefits eligible for employment authorization. In fact, the Fifth Circuit found that it is clear that combating the employment of such aliens is one of the central points of the system of immigration laws. The Fifth Circuit found that by potentially authorizing 4.3 million people for employment who would not otherwise be eligible, DAPA would severely undermine Congress’ stated goal of guarding access to employment authorization. In this respect, the Fifth Circuit found that DAPA is “manifestly contrary” to the INA.

Finally, the Fifth Circuit addressed the government’s argument that DAPA is grounded in historical practice. Firstly, the Fifth Circuit rejected that argument because being grounded in historical practice does not by itself mean that the policy is in accordance with statute. Secondly, the Fifth Circuit noted that the deferred action programs that the government relied upon were much smaller in scope, and were either created to serve as a “bridge from one status to another” or on a country-specific basis in response to extreme circumstances.

Injunction Upheld: Government’s Alternative Remedies Rejected

The District Court, being under the jurisdiction of the Fifth Circuit, is required to follow the guidance of the Fifth Circuit. In doing so, the District Court applied the precedent from a 2013 Fifth Circuit decision, Sepulvado v. Jindal [PDF version],16 in determining whether a preliminary injunction was appropriate:

1. Does Texas have a substantial likelihood of success on the merits of its claims?
2. Is there a substantial threat of irreparable injury to Texas if the injunction is not issued?
3. Does the threatened injury outweigh any harm that will result if the injunction is granted?
4. Will granting the injunction disserve the public interest?

Judge Hanen ruled in the affirmative on all four counts, and the Fifth Circuit concurred. The government suggested in the event that Fifth Circuit rejected its arguments in favor of lifting the injunction, that the injunction be limited in scope to Texas or to Texas and the 25 other states in the lawsuit. However, the Fifth Circuit rejected this request because the U.S Constitution requires a “uniform rule of naturalization.”17 In addition, the Fifth Circuit noted that “the Constitution vests the District Court with ‘the judicial Power of the United States,” and that the power is not limited to the district where the court sits.18

What Happens Next?

The government has announced that it will ask the Supreme Court to lift the injunction. If the Supreme Court does not hear and lift the injunction expeditiously, it is likely that the request will not be heard until after President Obama leaves office, thus leaving the fate of the proposed program to the next administration.

My Thoughts

The Fifth Circuit’s ruling was sound and on point on each of the issues it addressed. First, Texas would certainly be heavily burdened by the program, especially given the number of people in Texas who would stand to benefit from it, Thus, Texas should certainly have standing to, at the very least, seek a notice and comment period on what would be a highly burdensome new policy.

Second, the government’s arguments that DAPA is exempt from notice and comment are manifestly silly. Both the Fifth Circuit and Judge Hanen were correct to look not only at the language of the DAPA Memo to determine that it does not provide any real discretion to immigration officials, but also to the implementation of DACA and public statements from the President and other officials.

I was also pleased to see the Fifth Circuit address the underlying illegality of the DAPA program. Regardless of whether one thinks the provisions are good policy, the Fifth Circuit did an effective job of showing how the DAPA program is contrary to the system of immigration laws passed by Congress. This is especially evident in the number of people who would be able to obtain employment authorization under DAPA who could not do so otherwise. Contrary to the administration’s apparent belief, Congress’ inaction in pursuing immigration reform does not provide the President carte blanche to confer legal status upon 4.3 million people who Congress clearly did not intend to be eligible for it.

Even if I thought that DAPA was good policy, this would not change my view that the injunction was properly granted and upheld, and that Texas should win this case on the merits. However, as a matter of policy, DAPA is the wrong approach. For one, DAPA too readily rewards a very large class of people who are in the United States illegally with immigration benefits. Along with this lawful status, many would be eligible for employment authorization, something that many persons in the United States who are here legally are not eligible for. Furthermore, this program is not a permanent solution for these people, and it comes with no provision to otherwise improve the immigration system. Even if DAPA were to go into effect, because it is clearly not grounded in statute, the next President could easily reverse the policy, sending all of the people who benefited from DAPA back to being unlawfully present and ineligible for employment.

As a final note, programs such as DAPA and proposals that point toward allowing aliens in the country illegally to gain permanent legal status serve as perverse incentives that encourage further illegal immigration. The United States is a nation of laws, not a nation of policies that derive from the whims of the purported good intentions of the executive branch of government. If the United States is to have a healthy system of immigration laws that welcome immigrants, but also control the borders and regulate immigration, it is essential that persons seeking to enter or in the country illegally are not under the impression that given enough time, violations of the immigration laws will invariably be forgiven with few adverse immigration consequences.

  1. Texas is joined in the lawsuit by: Alabama; Georgia; Idaho; Indiana; Kansas; Louisiana; Montana; Nebraska; South Carolina; South Dakota; Utah; West Virginia; Wisconsin; Maine (Gov. Paul LePage); North Carolina (Gov. Pat McCrory); Idaho (Gov. C.L. “Butch” Otther); Mississippi (Gov. Phil Bryant); North Dakota; Ohio; Oklahoma; Florida; Arizona; Bill Schuette (Attorney General of Michigan); Nevada; Tennessee. Note that both the District Court and the Fifth Circuit have found that Texas has standing to sue, but they have not found it necessary to make determinations with regard to the other states in the lawsuit.
  2. Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015)
  3. Texas v. United States, 787 F.3 733 (5th Cir. 2015)
  4. U.S. Const. art. II, § 3
  5. In would be interesting (although unnecessary in order to decide the case in favor of Texas on the merits) to see the courts ultimately reach this question because the “take care clause” has been very lightly litigated over the course of U.S. legal history. The clause requires that the President “take care that the laws be faithfully executed.” Senator Ted Cruz (R-Texas) raised a “constitutional point of order” against continued DHS funding (as part of a larger continuing resolution) relying upon the assertion that the executive actions on immigration violated the take care clause. However, only 22 Senators voted in favor of the point of order, and it was soundly defeated.
  6. U.S. Const. art. II § 2 [contains the case or controversy clause from which standing derives from in the constitution]
  7. Primarily: Clapper v. Amnesty Int’l USA, 568 U.S. __ (2013) [for the standing requirements]; Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)
  8. The District Court also proposed a second ground for standing called “abdication standing.” This was based upon the government harming Texas by declining to enforce immigration laws despite having exclusive authority over immigration. However, this argument was not accepted by the majority in Fifth Circuit.
  9. 5 U.S.C. § 553(b)
  10. 5 U.F.C. § 553(b)(A)
  11. Additionally, Judge Hanen quoted President Obama on multiple occasions stating that agency officials who did not comply with the requirements of the DAPA Memo would face consequences.
  12. 5 U.S.C. § 553(b)(A)
  13. 8 U.S.C. § 1101(5); see also 8 U.S.C. § 1101(3) “Despite the principle of self-sufficiency, aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates.”
  14. See INA 201 § (b)(2)(A)(i), INA § 202(a)(9)(B)(i)(II), INA § 201(a), INA § 205
  15. Although I am not focusing on it in this blog, the government argued that DAPA is merely an exercise of prosecutorial discretion, and thus not subject to judicial review (further because “lawful presence” is not a status, does not confer benefits, and may be revoked at any time). However, the Fifth Circuit rightfully rejected this argument, finding that DAPA goes beyond prosecutorial discretion by conferring lawful status, and that it is reviewable because it will make many aliens eligible for public benefits even though DAPA does not confer public benefits directly.
  16. Sepulvado v. Jindal, 729 F. 3d 413 (5th Cir. 2013)
  17. U.S. Const. art. I, § 8, cl. 4
  18. U.S. Const. art. III § 1