After a split Fifth Circuit
panel declined
to lift Judge Hanen’s preliminary
injunction in Texas v. United States
blocking President Obama’s two executive actions that could defer the
deportations of an estimated 4.4 million people, the score was 2 in favor of
Texas and 0 for President Obama. One of
the memorable quotes in the Rocky movie about boxing is apt here, “[I]t ain't
how hard you hit; it's about how hard you can get hit, and keep moving forward.”
Although President Obama has
been hit hard, his legal team has to keep moving forward and there is plenty to
look forward to that can ultimately win the day for the 4.4 million who will
benefit from deferred action. Although
there has been substantial analysis regarding the flaws in the latest decision,
scant attention has been paid to a 2013 decision of the Fifth Circuit that held
that a local ordinance penalizing landlords and occupants for not being lawfully
present in the United States was preempted under federal immigration law. This decision may provide a narrow path to
victory for President Obama.
In Villas
at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5th
Cir. 2013), the Fifth Circuit struck down a Farmers Branch, TX, 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’s ability to exercise discretion
relating to removal of non-citizens is a key reason for a state or local
regulation of immigration being preempted under the Supremacy Clause of the US Constitution:
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.
Texas
v. United States, on first brush, is not a preemption case as
it does not involve a state law regulating immigration that conflicts with
federal law. Plaintiff states challenged President Obama’s executive actions,
mainly on grounds that the President did not issue a rule prior to implementing
deferred action for parents who have citizen or permanent resident children in
the US (DAPA) or expanded deferred action for childhood arrivals (DACA). Still,
the Fifth Circuit’s panel refusing to stay the preliminary injunction of Judge Hanen does not bode too well for federal preemption
of immigration law and policy, which has been upheld not only by the Fifth
Circuit in Farmers Branch, but also
by the Supreme Court in Arizona
v. United States, 132 S.Ct. 2492, 2499 (2012), which articulated:
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. If removal proceedings commence, aliens may seek asylum and
other discretionary relief allowing them to remain in the country or at least
to leave without formal removal….
Discretion in the
enforcement of immigration law embraces immediate human concerns. Unauthorized
workers trying to support their families, for example, likely pose less danger
than alien smugglers or aliens who commit a serious crime. The equities of an
individual case may turn on many factors, including whether the alien has
children born in the United States, long ties to the community, or a record of
distinguished military service. Some discretionary decisions involve policy
choices that bear on this Nation’s international relations. Returning an alien
to his own country may be deemed inappropriate even where he has committed a
removable offense or fails to meet the criteria for admission. The foreign
state maybe mired in civil war, complicit in political persecution, or enduring
conditions that create a real risk that the alien or his family will be harmed
upon return. The dynamic nature of relations with other countries requires the
Executive Branch to ensure that enforcement policies are consistent with this
Nation’s foreign policy with respect to these and other realities.
When the actual merits of
Judge Hanen’s injunction are considered by another panel of judges in the Fifth
Circuit, they will hopefully take notice of Farmer’s
Branch that was decided en banc, which upheld the federal government’s
ability to exercise discretion in the removal of aliens under the preemption
doctrine. Interestingly, Judges Smith and Elrod, who decided against President Obama in the Fifth
Circuit, were also among the dissenting judges in the Farmers Branch case.
The key issue in Texas v. United States is whether states
should be even permitted to sue the federal government on immigration
enforcement policy. If President Obama loses in the Fifth Circuit on the actual
appeal, and the Supreme Court upholds it, then this would be an open invitation
for any cantankerous state politician to bring a law suit against the federal
government over an immigration policy that he or she dislikes. The ability of a
state to harass the federal government could be endless. For instance, the
federal government can invoke its authority to parole aliens into the United
States under INA 212(d)(5), and could bring in a large group of people into the
US for humanitarian reasons, such as victims of atrocities by ISIS in Iraq and
Syria. A state opposed to the paroling of these aliens can potentially sue the
federal government if it can manufacture some harm that would befall it, like
Texas did, that it would be costly for the state to issue drivers licenses to
them. Similarly, a state could sue the federal government for granting deferred
action to victims of domestic violence or crime victims or widows and widowers
of US citizens, like the federal government has done in the past. These sorts
of challenges from states would undermine the long established doctrine that
immigration policy is within the purview of the federal government and Congress.
Another concern for upholding preemption of federal immigration law from
interference by states is the concern about the relationship between
immigration and foreign affairs. See Toll
v. Moreno, 458 U.S. 1 (1982); Hines
v. Davidowitz, 312 U.S. 52 (1941). If
a state were allowed to sue each time the federal government issued a policy
and blocked it, this would upset the long acknowledged preemption doctrine
relating to immigration. If there is a disagreement in how the Executive Branch
implements immigration policy, it is for Congress to intervene by changing the
law rather than for states like Texas to file a law suit.
Judge Higginson’s dissenting opinion (who also
wrote the majority opinion in Farmers
Branch) in the Fifth Circuit’s decision refusing to lift the stay correctly
opined that President Obama’s executive actions are non-justiciable as they are
internal executive enforcement guidelines. The dissenting opinion appropriately
relied on the Supreme Court decision in Heckler
v. Chaney, 470 U.S. 821 (1985), which
held “that an agency’s decision not to
prosecute or enforce, whether through civil or criminal process, is a decision
generally committed to an agencies absolute discretion.” Whether executive enforcement guidelines
provide deferred action to millions rather than thousands or hundreds should
not make them any more or less amenable to a legal challenge by a state. So
long as the President does not grant legal status, which he cannot do under the
INA (and both Judge Hanen and the majority in the Fifth Circuit confused legal
status with lawful presence), it should not make a difference under Heckler v. Chaney whether deferred action
is granted to thousands of spouses of military personnel or to millions of parents
of citizen and permanent resident children. Charles
Kuck and others
have forcefully proposed that President Obama should publish a rule in the
Federal Register, and this would weaken plaintiffs’ chief claim that the
President violated the Administrative Procedure Act by not proposing a rule for
public notice and comment when implementing DAPA and DACA. While this is an intriguing
idea, it would also be a cop out. Every new enforcement decision would have to
go through the notice and comment procedure under the APA out of fear of
inviting more law suits from states, and this would again undermine the
preemption doctrine relating to immigration.
Indeed, one of the
concurring opinions in Farmers Branch
acknowledged that the largely federal discretionary
immigration enforcement system, including the grant of deferred action, would be upset if a state regulation conflicted
with it, and relied on Arizona v. USA
by opining: “The Court held that the
statute stood as an impermissible obstacle to the design and purposes of the
largely discretionary immigration enforcement system Congress created because
it could result in “unnecessary harassment of some aliens (for instance, a
veteran, college student, or someone assisting with a criminal investigation)
whom federal officials determine should not be removed” and ultimately “would
allow the State to achieve its own immigration policy.” [citation omitted].
Because such state-to-state variance “is not the system Congress created,” the
Court held that the Arizona statute “violates the principle that the removal
process is entrusted to the discretion of the Federal Government.””
There are many arguments
that may ultimately carry the day for the Obama administration and its ability
to bring relief to millions who are a low enforcement priority. In Crane
v. Johnson, the federal government was victorious in a law suit against
the previous 2012 DACA program as the Fifth Circuit held that Mississippi
lacked standing since its claim to injury was speculative. Texas, however, has been able to manufacture a
more cogent harm regarding the burdens that would be caused in the issuance of
new driver licenses. Regardless of the merits
of a state’s standing claim, standing would be moot if the claim is non-
justiciable as Judge Higginson found, and Farmers
Branch should provide the basis for this on the ground that a state cannot
upset the preemption doctrine on immigration. It is no secret that Texas v. United States is a political
fight as the plaintiff states are Republican, and the judges that have ruled
against Obama have been appointed by Republican Presidents. It is also true that the majority of judges in
the Fifth Circuit are Republican appointees, but Farmers Branch was also decided en banc in the Fifth Circuit,
and the panel that considers the appeal will be bound by its own precedent.
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