Yesterday, Judge Andrew Hanen, a federal district court judge in Texas, granted a motion by Texas and 25 other states for a preliminary injunction barring the Obama administration from implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program that was announced by DHS Secretary Jeh Johnson. The opinion is 123 pages long, and is, in my view, well-reasoned and persuasive. Several points should be made about the opinion:
* A little over half of the opinion is devoted to the issue of standing. Judge Hanen found multiple reasons why the State of Texas has standing to challenge implementation of DAPA.
* Judge Hanen’s opinion is not a final decision on the merits. Rather, his order preserves the status quo until such time as a trial can be held and a final opinion on the merits rendered. However, a prime consideration in granting a temporary injunction is the court’s assessment of how likely the plaintiff is to ultimately prevail. The opinion therefore contains extensive discussion of the merits of the states’ claims.
* Judge Hanen did not address the constitutional or separation of powers issues raised by the plaintiff states. Instead, he deferred consideration of those issues and found that the plaintiffs are likely to prevail on a narrower ground: the Obama administration violated the Administrative Procedure Act by promulgating the DAPA program without going through the notice and comment rule making procedure required by the APA.
* Despite the limited nature of his ultimate findings, Judge Hanen had ample opportunity to comment on the propriety of DAPA as a supposed exercise of “prosecutorial discretion” by the administration. He soundly rejected that claim:
In the present case, Congress has clearly stated that illegal aliens should be removed. Like that at issue in Adams, the DHS program clearly circumvents immigration laws and allows individuals that would otherwise be subject to removal to remain in the United States. … In contrast, the DHS does not seek compliance with federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country’s immigration law. Assuming that the concept of abdication standing will be recognized in this Circuit, this Court finds that this is a textbook example.
The responsibility of the federal government, who exercises plenary power over immigration, includes not only the passage of rational legislation, but also the enforcement of those laws. The States and their residents are entitled to nothing less. DAPA, no matter how it is characterized or viewed, clearly contravenes the express terms of the [Immigration and Naturalization Act].
Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-ranging 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. … Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcemet 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 the law, legal presence status, plus any benefits that may accompany legal presence under current regulations.
The Government must concede that there is no specific law or statute that authorizes DAPA. In fact, the President announced it was the failure of Congress to pass such a law that prompted him (through his delegate, Secretary Johnson) to “change the law.” Consequently, the Government concentrates its defense upon the general discretion it is granted by law. … The DHS cannot reasonably claim that, under a general delegation to establish enforcement policies, it can establish a blanket policy of non-enforcement that also awards legal presence and benefits to otherwise removable aliens.
In the instant case, the DHS is tasked with the duty of removing illegal aliens. Congress has provided that it “shall” do this. Nowhere has Congress given it the option to either deport these individuals or give them legal presence and work permits. The DHS does have the discretion and ability to determine how it will effectuate its statutory duty and use its resources where they will do the most to achieve the goals expressed by Congress. Thus, this Court rejects both extremes. The word “shall” is imperative, and, regardless of whether or not it eliminates discretion, it certainly deprives the DHS of the right to do something that is clearly contrary to Congress’ intent.
The DHS does have discretion in the manner in which it chooses to fulfill the expressed wish of Congress. It cannot, however, enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them. As the Government’s own legal memorandum–which purports to justify DAPA–sets out, “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” … The DHS Secretary is not just rewriting the laws; he is creating them from scratch.
Here is Judge Hanen’s opinion in its entirety. I would encourage you to read it; it is lengthy but not particularly difficult to follow:
What happens next? The White House has said that it will appeal to the 5th Circuit Court of Appeals. As of this writing, that appeal does not appear to have been filed. The administration will ask the appellate court to dissolve the preliminary injunction, but that strikes me as anything but a foregone conclusion. In any event, it presumably will take time. Meanwhile, Judge Hanen’s decision is, at a minimum, a well-deserved rebuke and a political embarrassment to the administration.
Some have suggested that this preliminary injunction may provide a path forward in Congress, where the parties are deadlocked over DHS funding. If DAPA has been enjoined from going forward, then the Democrats’ insistence that it be funded, or else they will shut down the entire Department of Homeland Security, is, in principle, moot. I think there is zero chance that the Democrats will see it that way, however.
The next action will come in the 5th Circuit Court of Appeals. Stay tuned.