More Thoughts on Today’s Fifth Circuit DAPA Decision

Paul has already written about the order today by a three-judge panel of the Fifth Circuit, declining to lift the injunction the district court in Texas v. United States of America has imposed against implementation of the administration’s DAPA program. I want to emphasize one or two points about the status and significance of this case.

First, while this is not always clear from news accounts, no court has yet gotten anywhere near the merits of the case. The trial court found that the State of Texas and the other plaintiff states are likely to prevail on a single argument on the merits, that is, that the administration did not comply with the notice and comment requirements of the Administrative Procedure Act in adopting DAPA. The other issues raised by the states, including the constitutionality of Obama’s executive order and whether DAPA is authorized by any statute, have not yet been addressed in even a preliminary way. That will happen down the road, when the district court holds a trial or hearing on the merits of the case.

Second, the debate so far has been mostly over the states’ standing and the justiciability of the claims asserted by the states–that is, whether the federal courts have the authority to hear those claims. Today’s panel split two to one. The two judges in the majority held that the states do have standing, as they will suffer concrete monetary harm if DAPA is implemented. They held further that Congress has not placed the administration’s actions beyond judicial review.

The dissenting judge, an Obama appointee, argued that DAPA is merely an “internal guidance document” that articulates DHS enforcement policies, and as such is not reviewable by the courts:

I would hold that Supreme Court and Fifth Circuit caselaw forecloses plaintiffs’ arguments in challenging in court this internal executive enforcement guideline. …

For the foregoing reasons, I would grant a stay of the district court’s preliminary injunction because I believe the policy articulated in the November 20 memorandum is non-justiciable.

Here is the point: the Obama administration has launched a broad attack on the rule of law, extending over multiple fronts. It has sought not only to bypass Congress, but to reverse and annul federal legislation by executive order. It has directed federal agencies to carry out programs that were never enacted by Congress. All of this is happening at a time when many are questioning whether the entire apparatus of the administrative state–the fourth branch of government–is consistent with the Constitution.

At this moment in history, it is imperative that the federal courts be willing to review the administration’s executive orders (and those of any future administration) on the merits; that is, to determine whether they are constitutional and authorized by statute. The already-tangled history of Texas v. United States of America shows how doctrines of standing and justiciability can raise significant obstacles to such review. Judicial oversight is at best a cumbersome process, but in the months and years to come it is essential that judicial oversight be allowed to function.

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