For I was hungry and you gave me food, I was thirsty and you
gave me drink, I was a stranger and you welcomed me
Matthew 25:35
A lawsuit was expected as soon as President
Obama dramatically announced that his immigration executive actions could
impact more than 5 million people. It is already here. On December 3, 2014, Texas
took the lead with 18 other states in a lawsuit
against the United States asserting that the President’s unilateral Immigration
Accountability Executive Actions are unconstitutional. The
coalition of states in addition to Texas include Alabama, Georgia, Idaho,
Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North
Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and
Wisconsin.
The complaint essentially alleges that the
DHS directive violates the President’s constitutional duty to “take Care that
the Laws be faithfully executed” under Article II, §3, Cl. 5 of the United
States Constitution. Another basis for the complaint is that under the
Administrative Procedure Act, 5 U.S.C. § 553, the President’s executive action
is akin to a rule, which needs to be promulgated through notice-and-comment
rulemaking. The complaint also cites APA, 5 U.S.C. § 706, which gives a federal
court power to set aside an agency action that is, among other things,
arbitrary or capricious, contrary to constitutional right or in excess of
statutory authority. But it reads more
like a white-hot tabloid, and instead of providing a forceful legal basis, loudly
proclaims in bombastic fashion several prior utterances of President Obama
claiming that he could never bypass Congress. Here are two out of many examples:
“I am president, I am not king. I can’t do these things
just by myself…[T]here’s a limit to the discretion that I can show because I am
obliged to execute the law…I can’t just make the laws up by myself.”
“[I]f in fact I could solve all these problems without
passing laws in Congress, then I would do so. But we’re also a nation of laws.
That’s part of our tradition. And so the easy way out is to try to yell and
pretend like I can do something by violating our laws. And what I’m proposing
is the harder path, which is to use our democratic processes to achieve the
same goal. “
The President still went ahead and changed
the law himself despite his many previous assertions that he could not,
according to the complaint, as if that can be a legal basis to challenge the
actions. Interestingly, the President consistent with these prior utterances of
his still insists even after November 20, 2014 that only Congress can change
the law and bring on meaningful reform. The
centerpiece of the President’s executive actions is to broaden deferred action,
which has always been deployed by the Executive Branch. The November 20, 2014
announcement defers the deportation of people who were in unlawful status as of
the date of the announcement, and who were also the parents of US citizen or
permanent resident children, provided they were in the United States before
January 1, 2010. The previous Deferred Action for Childhood Arrivals (DACA)
program has been expanded to include those who came to the United States when they
were below 16 years prior to January 1, 2010 instead of January 15, 2007. The
previous age limit of 31 that was imposed in the June 15, 2012 announcement has
been lifted. Eligible people who are a non-priority for enforcement purposes
can apply for deferred action, and obtain employment and travel authorization.
The lawsuit is a waste of time and taxpayers
money. The authors have argued in A
Time for Honest Truth: A Passionate Defense of President Obama’s Executive
Actions that the President clearly has the legal authority to exercise
discretion with respect to prioritizing on whom to enforce the law against,
especially when Congress has not provided sufficient funding to deport 12
million undocumented people all at once. Even the conservative establishment
refers to those who desire to deport 12 million as the “boxcar” crowd. The truth is that deferred action is neither
recent nor revolutionary. Widows of US citizens have been granted this benefit.
Battered immigrants have sought and obtained refuge there. Never has the
size of a vulnerable population been a valid reason to say no. Even if the law
suit alleges that the President does not have authority, now is a good time to
remind critics about Justice Jackson’s famous concurrent opinion in Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952), which held that the President may
act within a “twilight zone” in which he may have concurrent authority with
Congress. Unlike Youngstown
Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the
President could not seize a steel mill to resolve a labor dispute without
Congressional authorization, the executive branch under the recent immigration
actions is well acting within Congressional authorization. In his famous
concurring opinion, Justice Jackson reminded us that, however meritorious,
separation of powers itself was not without limit: “While the Constitution
diffuses power the better to secure liberty, it also contemplates that practice
will integrate the dispersed powers into a workable government. It enjoins upon
its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Although
President Truman did not have authorization to seize the mill to prosecute the
Korean War, Justice Jackson laid a three-pronged test to determine whether the
President violated the Separation of Powers clause. First, where the President
has express or implied authorization by Congress, his authority would be at its
maximum. Second, where the President acts in the absence of congressional
authority or a denial of authority, the President may still act
constitutionally within a “twilight zone” in which he may have concurrent
authority with Congress, or in which its distribution is uncertain. Under the
second prong, Congressional inertia may enable, if not invite, measures of
independent presidential authority. Finally, under the third prong, where the
President acts in a way that is incompatible with an express or implied will of
Congress, the President’s power is at its lowest and is vulnerable to being
unconstitutional.
Through the Immigration Accountability Executive Actions, the President is
likely acting under either prong one or two of Justice Jackson’s tripartite
test. INA Section 103(a)(1) charges the DHS Secretary with the
administration and enforcement of the INA. This implies that the DHS can decide
when to and when not to remove an alien..”
INA § 212(d)(5), which Congress also enacted, authorizes the Executive
to grant interim benefits for “urgent humanitarian reasons” or “significant
public benefits.” Parole can also be
used to allow promising entrepreneurs to come to the United States and establish
startups, although this and many other actions to help businesses have not been
attacked in the law suit. Moreover, INA § 274A(h)(3)(B) provides authority to
the Executive to grant employment authorization. Even if such authority is
implied and not express, Congress has not overtly prohibited its exertion but
displayed a passive acquiescence that reinforces its constitutional legitimacy.
Operating in Justice Jackson’s “twilight zone,” such constructive ambiguity
creates the opportunity for reform through executive initiative. In terms of employment
authorization issuance, Congress has rarely spoken on this except via INA §
274A(h)(3)(B), so that many instances of employment authorization issuance are
purely an act of executive discretion justified by that one statutory
provision. Furthermore, INA § 103(3) confers powers on the Secretary of
Homeland Security to “establish such regulations, prescribe such forms or
bonds, reports, entries and other papers; issue such instructions; and perform
such other acts as he deems necessary for carrying out his authority under the
provisions of this Act.”
We reproduce the very penetrating and insightful comments of our esteemed
colleague Jose R. Perez, who is a partner at Foster:
It’s my
hope that Federal Judge Andy Hanen in Brownsville, TX, will do the right thing
and dismiss this lawsuit based on:
·
#1: Lack of subject
matter jurisdiction since the alleged cause of action is a ‘political question’
or a dogfight between the executive & legislative branches as there is no
case or controversy for an Article III Court to decide;
·
#2: The plaintiffs
lack ‘standing’ since the states have NOT suffered a palpable injury suffered
and the ‘alleged injury’ is baseless and at best highly speculative since no
undocumented alien has benefited from the executive actions of November 20,
2014; and
·
#3: Once implemented,
the executive actions do NOT circumvent Congress or usurp our Constitution
since President Obama has the executive authority under Article II of the U.S.
Constitution and the statutory authority under the INA to grant deferred action
based on law enforcement priorities as an act of prosecutorial discretion. This
is an presidents have done so. [ My family and I came to the U.S. as ‘parolees’
based on President Johnson’s exercise of discretion that allowed approx. 1
Million Cubans to be paroled and to eventually benefit from the Cuban
Adjustment Act of 1966, a very open-ended and most favorable statute.]
We wish to double down on these sage comments
concerning lack of state standing to bring this lawsuit for they are its
Achilles heel. This is not a case where
a federal agency like the Environmental Protection Agency has declined a
request by an affected state actor to regulate the emission of toxic greenhouse
gas emissions whose presence in our air and water present a clear and present danger
of environmental catastrophe.. For this reason, the holding by the Supreme
Court that the State of Massachusetts did have requisite Article III standing
to sue the EPA is fundamentally inapposite both in logic and law. Massachusetts v. Environmental Protection
Agency, 549 U.S. 497 (2007). Undocumented
immigrants who work long hours at low pay doing the hard and dirty jobs on
which we all depend but are loath to perform are not the cause or harbinger of
global warming. Whatever grievances Texas and her sister states have , the
proper forum for their expression and resolution in our system of governance is
the Congress not the courts. See Lajan v. Defenders of Wildlife, 504 U.S.
555, 576 (1992)..
Courts are loath to review any non-enforcement
decisions taken by federal authorities. See,e.g., Lincoln v. Vigil, 508
U.S. 182, 191-92 (1993). Arizona v. United States, 132
S.Ct. 2492, 2499 (2012), articulated the true reason why: “[a] principal
feature of the removal system is the broad discretion exercised by immigration
officials…Federal officials, as an initial matter, must decide whether it makes
sense to pursue removal at all…” The decision by President to order ICE to
focus its enforcement activities on designated priorities is a policy judgment
which the courts have neither the time nor inclination to second guess:
This Court has recognized on several
occasions over many years that an agency's decision not to prosecute or
enforce, whether through civil or criminal process, is a decision generally
committed to an agency's absolute discretion. See United States v. Batchelder,
442 U. S. 114, 123-124 (1979); United
States v. Nixon, 418 U.
S. 683, 693 (1974); Vaca v. Sipes,
386 U. S. 171, 182 (1967); Confiscation
Cases, 7 Wall. 454 (1869). This recognition
of the existence of discretion is attributable in no small part to the general
unsuitability for judicial review of agency decisions to refuse enforcement.
Heckler v. Chaney, 470 U.S. 821, 8311 (1985)
The Constitution
neither allows nor encourages any of the state litigants in this
extra-constitutional litigation to micromanage the enforcement or
implementation of current immigration law or regulation. That is up to the
President and those federal agencies to whom he delegates his authority: “An
agency has broad discretion to choose how best to marshal its limited resources
and personnel to carry out its delegated responsibilities.” Chevron v. Natural Resources Defense
Council, 467 U.S. 837, 842-845 (1984). Under the oft-quoted Chevron doctrine, federal courts will
pay deference to the regulatory interpretation of the agency charged with
executing the laws of the United States when there is ambiguity in the statute.
The courts will intrude only when the agency’s interpretation is manifestly
irrational or clearly erroneous. Similarly, the Supreme Court in Nat’l
Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 (2005),while
affirming Chevron, held that, if there is an ambiguous statute requiring
agency deference under Chevron, the agency’s understanding will also
trump a judicial exegesis of the same statute. There is simply no case or controversy here for the federal courts
to settle. None of these Plaintiffs identify or present such a “ personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination.” Baker v. Carr, 369
U.S. 186, 204 (1962). Where is their
standing then one wonders? In all of the hyperbolic protestations that suffuse
this complaint, where rhetoric often masquerades as reality, one looks in vain for any allegation or
evidence that any of the state complainants can “ show that it has suffered a
concrete and particularized injury that is fairly traceable to thte defendant
and that a favorable decision will likely redress that injury.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-561 (1992).
Still, one should not
be too sanguine about Judge Hanen doing the right thing who will hear this case
in the United District Court for the Southern district of Texas, Division. In US v. Nava-Martinez, a case that
involved a human trafficker who sought to smuggle an El Salvadorian girl into
the United States, Judge Hanen chastised the DHS for completing the crime by
delivering the minor to the custody of the parent, even though the DHS was obliged to unify the
child under the 1997 Flores v. Reno,
CV-85-4544-RJK, settlement agreement. Judge Hanen equated this policy to “taking
illegal drugs or weapons that it had seized from smugglers and delivering them
to the criminals who initially solicited their illegal
importation/exportation.” Id. at 10.
The plaintiffs have cleverly cited Nava-Martinez
in their complaint as an example of DHS laxity encouraging illegal migrants,
and also disingenuously conflated the surge of unaccompanied minors this summer
with the President’s previous DACA program, even though it has been well
documented that these children may have come to the US for
other legitimate reasons, such as fleeing horrific gang persecution in
countries such as Honduras, el Salvador and Guatemala. . A December
5, 2014 NY Times article confirms this:
At
the National Immigrant Justice Center in Chicago, lawyers interviewed 3,956
migrant children this year. Lisa Koop, associate director of legal services
there, said the number of children who had heard of the 2012 program was “in
the single digits.”
“It
is clear that DACA was not a driving force behind the migration,” Ms. Koop
said. “What we heard time and again was that violence in Central America and
the need for safe haven was what prompted these children to undertake the
journey north.”
Even if Judge Hanen
does not rule the way we think he should, it is hoped that the Fifth Circuit
will swiftly reverse him. Indeed, the Fifth Circuit has recently recognized the
supremacy of federal immigration law over state law as well as federal
discretion in enforcing immigration law. In Villas at Parkside Partners v. Farmers
Branch, 726 F.3d 524 (5th Cir. 2013), the Fifth Circuit
struck down a local housing ordinance on preemption grounds because it
conflicted with federal law regarding the ability of aliens not lawfully
present in the United States to remain in the US. The Fifth Circuit also noted
that the federal government could exercise discretion:
Whereas the Supreme Court has made clear that there are
"significant complexities involved in [making] . . . the determination
whether a person is removable," and the decision is "entrusted to the
discretion of the Federal Government," Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring)
("[T]he structure of the immigration statutes makes it impossible for the
State to determine which aliens are entitled to residence, and which eventually
will be deported."), the Ordinance allows state courts to assess the legality
of a non-citizen's presence absent a "preclusive" federal
determination, opening the door to conflicting state and federal rulings on the
question.
The creation of law by
federal agencies in the implementation of executive initiative has become the
norm rather than the exception in our system of governance , if for no other
reason than that the sheer multiplicity of issues, as well as their dense
complexity, defy traditional compromise or consensus which are the very
hallmarks of Congressional deliberation. Despite the assertion in Article I of
the Constitution that “ All legislative Powers herein granted shall be vested
in a Congress of the United States,” it is far from novel to acknowledge as we
must that independent federal regulatory agencies also exercise legislative
powers. As Justice White noted in his dissent in INS v Chadha,
462 U.S. 919, 947 (1983) (White,J., dissenting) after reviewing prior cases
upholding broad delegations of legislative power:
These cases establish that by virtue of
congressional delegation, legislative power can be exercised by independent
agencies and Executive departments without passage of new legislation. For some
time, the sheer amount of law- the substantive rules that regulate private
conduct and direct the operation of government- made by the agencies has far
outnumbered the lawmaking engaged in by Congress through the traditional
process. There is no question that agency rulemaking is lawmaking in any
functional or realistic sense of the term.
Immigration has
historically been linked to foreign policy. Indeed, a core reason for the
plenary federal power over immigration is precisely because it implicates real
and genuine foreign policy concerns. This is another reason why the Executive
enjoys wide, though not unchecked, discretion to effect changes in immigration
procedures through sua sponte
regulation. Indeed, it is perhaps only a modest exaggeration to maintain that
the INA could not be administered in any other way. The President’s executive action does not
displace Congress as the primary architect of federal immigration policy but
rather is in aid of the legislative function and, as such, is in harmony with
the constitutional injunction to diversify authority. The President is not
divorced from lawmaking; that is the very reason why the Framers provided an
executive veto power. If the President had no role in lawmaking, why give such
a weapon to limit congressional prerogative? Once we accept the fact that the
Executive is a junior partner in lawmaking, then the President’s executive actions become a strong but unremarkable expression of this well-settled constitutional
concept. To suggest that the President is powerless to act simply because only
Congress can modify the INA is to isolate one co-equal branch of our national
government from another beyond what the Constitution suggests or requires. This
is not what the Framers had in mind:
Yet it is also clear from the provisions of the
Constitution itself, and from the Federalist Papers, that the Constitution by
no means contemplates total separation of each of these three essential
branches of government…The mean who met in Philadelphia in the summer of 1787
were practical statesmen, experienced in politics, who viewed the principle of
separation of powers as a vital check against tyranny. But they likewise saw
that a hermetic sealing off of the three branches of Government from one
another would preclude the establishment of a Nation capable of governing
itself effectively.
Buckley v. Valeo, 424 U.S. 1, 121 (1976)
Not only is it
appropriate for the President to direct the formulation of immigration policy
on technical issues of surpassing importance, this is the way it must be; this
is what the Constitution expects. The decision by President Obama to do now
what he had been reluctant or unwilling to do earlier suggests not a reversal
of position or a grab for imperial power but
a willingness to change, to grow, to embrace solutions that meet the
exigencies of an ever-changing challenge stubbornly resistant to what has been
tried before and failed. We are reminded of what President Lincoln wrote to
Albert G. Hodges on April 4, 1864 : “I claim not to have controlled events, but
confess plainly that events have controlled me." In perhaps the most famous judicial exposition of
the need for pragmatic presidential initiative, we end our advocacy in
confident reliance upon the still cogent observations of Chief Justice John
Marshall in McCulloch v. Maryland:
To
have prescribed the means by which government should, in all future time,
execute its powers, would have been to change, entirely, the character of the
instrument, and give it the properties of a legal code. It would have been an
unwise attempt to provide, by immutable rules, for exigencies which, if
foreseen at all, must have been seen dimly, and which can be best provided for
as they occur
The President’s proposals do nothing to
inhibit or prevent Congress from enacting amendments to the INA. He has not attempted
to supplant Congress when it comes to the exercise of the legislative function
over which in alone enjoys plenary power.
President Obama has acted solely in furtherance of what the Congress has
already done to give America the immigration policy that it needs and deserves,
one that is more effective and adaptable to the exigencies of the moment so
that both the nation and the immigrants who have sacrificed all to write the
next great chapter in the American story can benefit in full measure.
(Guest author Gary Endelman is Senior Counsel at Foster)
