Near
the beginning of the argument, Judge Elrod offered an extensive hypothetical
regarding the question of reviewability: would the states be able to sue, she
asked, if the administration gave something like DAPA to all of the aliens present
without authorization? What about if the
administration gave that same population voting rights? The goverment’s attorney, AAG Mizer,
responded that the states wouldn't have standing in the hypothetical case of DAPA
being greatly expanded, although there might be competitor standing by other
workers. In the voting hypothetical,
however, he indicated that the states would probably have standing because the
Voting Rights Act has provisions giving special rights and thus standing to
states.
On the
topic of reviewability, Judge Higginson asked whether expanding deferred action
and thereby vastly expanding the class of people eligible for employment
authorization might be reviewable, despite the existence of the longstanding regulations
regarding employment authorization for deferred action recipients, if
employment authorization through deferred action had previously been available
to a smaller class of people.
Judge Elrod raised the issue of the district
court’s factual finding that there is not an actual exercise of discretion by
USCIS, and whether it is necessary to overcome a clear-error standard of review
in order for the government to prevail with regard to that finding—a point that
she revisited later in the argument. The
argument was based on the agency’s alleged practices in adjudicating
applications for the original DACA program, as instituted in
2012 by then-Secretary of Homeland Security Janet Napolitano, which was not
challenged by the plaintiff States and is not affected by the injunction; Judge
Hanen effectively found that DHS had not exercised discretion in the 2012 DACA
program and so would not exercise discretion with DAPA and expanded DACA. Judge Higginson, in response, made an
interesting point about how the fact the agency is removing more people than
ever before may rebut the suggestion that DHS is being pretextual in claiming
that they
are exercising discretion.
Judge
Elrod then raised the issue of whether the government has been disingenuous in
the litigation, and whether that influences a credibility determination. (On the question of whether the attorneys for
the government indeed had breached any ethical obligations, I would refer the
reader to an AILA
Leadership Blog post
by Cyrus D. Mehta in his capacity as Chair of the AILA Ethics Committee, and
the related more comprehensive paper from the AILA Ethics Committee, “Judge
Hanen’s Troubling Accusations of Unethical Conduct in Texas v. United States of America”.) The
district court, AAG Mizner pointed out in response, considered “public safety”
denials of the original 2012 DACA as not being discretionary, which is not
really fair, since protecting public safety is a major discretionary factor.
Judge
Higginson pointed out, with regard to the question of alleged disingenuousness
and credibility, that the district court doesn’t actually seem to have made any
credibility finding regarding the competing affidavits of USCIS union official
Kenneth Palinkas and USCIS
Associate Director for Service Center Operations Donald Neufeld, who had offered vastly different accounts
of how applications are processed. That
goes to Judge Elrod’s earlier point regarding the finding of fact, since it
would seem to be error to make such a finding while simply ignoring a contrary
affidavit and without having held an evidentiary hearing to resolve any
credibility issues.
Returning
to the question of standing and reviewability, the government noted that “Texas
has been here before” in terms of trying to sue the US government about
immigration policy, in 1997, and lost. AAG
Mizner further pointed out that 8
U.S.C. 1252(g), and
the Supreme Court’s decision in Reno v. American-Arab
Anti-Discrimination Committee, 525 U.S. 471
(1999),
interpreting that section, argue against anybody being able to sue regarding
prosecutorial discretion—if even disappointed aliens can’t sue regarding the
exercise of such discretion, then why would states, who have no role in
immigration, be able to do so?
Continuing
with the standing discussion, Judge Smith directed AAG Mizer to the Supreme
Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which he considered to
be a key case on the standing issue.
Mizer responded, first, that there isn’t a territorial effect in this
case as in Massachusetts, where the state’s territory was being affected (by
rising sea levels resulting from global warming). Also, the specific statute in Massachusetts v. EPA gave a specific right to sue, while the INA,
Mizer argued, “is not enacted to protect the states”.
Mizer moved
on to an interesting hypothetical about the problem with Texas’s standing
argument. Take the case of thousands of
paroled Cubans, for example, who then became eligible to adjust status (under
the Cuban
Adjustment Act). On Texas’s theory, if the paroled aliens moved
to Texas, then Texas would have a judicially cognizable harm. But to find standing for Texas under such
circumstances, Mizer said, would be inconsistent with the FAIR v. Reno decision of the D.C. Circuit, which rejected
a challenge to an agreement between the US and Cuba that would have such an
effect. Indeed, if Texas is right, Mizer
argued, then they would be able to challenge an individual decision to grant a
single person asylum, because if that person then gets a Texas driver’s
license, it’s a harm to Texas.
Judge
Elrod asked about why the US didn’t address the constitutional arguments made
by the plaintiffs below (and not passed upon by the District Court). Given the burden is on the government, she
suggested that this might mean the government would lose at the stay
stage. Between this, the earlier noted
questions from Judge Elrod, and a question soon thereafter in which Judge Elrod
relied on President Obama’s comments at a press conference, rather as Judge
Hanen had below, it seemed that Judge Elrod might be leaning in favor of
denying a stay, although reading the proverbial “tea leaves” from an oral
argument is always tricky.
Judge
Higginson next returned to a variant of his point about the potential
significance of DHS’s high number of removals, noting that the “abdication”
theory propounded by Judge Hanen doesn’t make sense given that high number.
Judge
Higginson followed up with an interesting hypothetical question about what
would happen if the next administration flipped the priorities and went after
DAPA recipients. AAG Mizer responded that DHS hasn’t bound itself not to change
its mind. Secretary Johnson may have
bound his subordinates, but he has not bound the agency.
Returning
to the question of standing, Judge Smith asked about the “special solicitude”
that Massachusetts v. EPA says is afforded to the states. Mizer says the immigration context is
different than that case, because the Supreme Court has said in Arizona v. United States that the states can’t enact laws to conflict
with federal immigration policy; why should the states be able to file a
lawsuit to the same end?
Judge Elrod
then asked AAG Mizer about whether “lawful status” is a benefit and about the
difference between this and the Watt case, that is, Watt v. Energy Action Education
Foundation, 454 U.S. 151 (1981). Regarding
Watt, Mizer’s response was to point
out that California actually had a statutory interest in sharing the revenues
from the program at issue in that case.
Regarding “legal status”, Mizer stated that deferred action is not a lawful status, just
lawful presence. There followed a somewhat confused discussion of what exactly lawful
presence is. AAG Mizer ultimately
pointed out that it doesn’t matter a great deal as a practical matter if one
has lawful presence under DAPA, because DAPA beneficiaries already had more
than a year of unlawful presence to begin with, and would thus already have
sufficient unlawful presence to trigger the 10-year bar (that is, INA
§212(a)(9)(B)(i)(II)).
The
states’ lawyer, Texas Solicitor General Keller (TSG Keller for short), near the
beginning of his argument, tried to pick up the thread regarding lawful
presence versus lawful status and make the case that granting “lawful presence”
is affirmative government action different than prosecutorial discretion. He
couldn’t answer a question whether past deferred action grantees had lawful
presence, but suggested that they might not have. He also seemed near the beginning of is
argument to concede that the scale of the program is not “pertinent to the
legal doctrines”, though he then said that it “colors whether it is a substantive
rule”.
Judge Higginson,
picking up on the earlier discussion of lawful presence and lawful status,
cited to Arizona v. United States and other case law to say that allowed
presence from deferred action is different from lawful status.
TSG
Keller moved on to talk about the double deference afforded in this stay
posture. He returned again later in the
argument to a discussion of the “stay posture” and the record compiled on an
expedited basis. I found this interesting
because to the extent the decision on the motion to stay relies on deference
factors unique to the stay context, that suggests that any unfavorable decision
on the motion to stay should not be given much deference by the panel that
subsequently considers the appeal of the preliminary injunction.
One of
the more notable aggressive moments of TSG Keller’s argument was when he
claimed that 8
U.S.C. §1324a(h)(3)
is only a “definitional” provision, and that the existing regulations regarding
employment authorization may not be legal.
Judge Hanen, as I had pointed out in my
prior post on this blog, had seemed to ignore that statute and the
portion of the regulations, 8
C.F.R. §274a.12(c)(14),
authorizing the grant of employment authorization to deferred action
recipients. Suggesting that the
statutory provision is nearly meaningless and the regulations potentially
invalid is, I suppose, an interesting alternative analytical route, but the
argument strikes me as unconvincing, and would have far-reaching and
problematic consequences if it did succeed.
This argument by TSG Keller would imply that the courts should read the
statute to invalidate, for example, all employment authorization given to
applicants for adjustment of status pursuant to 8
C.F.R. §274a.12(c)(9),
just because the powers given to the Secretary of Homeland Security (formerly
the Attorney General) by the statute to confer such employment authorization happen
to be bestowed in the form of a definitional provision.
Another
somewhat rocky moment in TSG Keller’s argument pertained to the “abdication”
theory of Article III standing mentioned by Judge Hanen, regarding which even
Judge Elrod appeared to be skeptical.
Judge Elrod was able to get TSG Keller to clarify that the states would still
need to show Article III injury in order to proceed on such a theory of
standing. As examples of such injury, TSG
Keller pointed to driver’s licenses, health care and education benefits.
On the
question of whether discretion was actually exercised in adjudicating
applications under the 2012 DACA program, Judge Higginson pointed out that
because of “self-selection bias”, you’d expect a high approval rate. That is, given that it is up to each
applicant whether to seek the benefit, people who aren’t going to qualify for
the benefit won’t tend to apply for it.
This seemed a compelling point to me, and Judge Higginson returned to it
repeatedly. This discussion of
discretion led to a further discussion of the data, or lack thereof, regarding
reasons for refusal and so on in DACA 2012, and why the government didn’t, or
couldn’t, provide evidence of discretionary refusals—evidently DHS had not kept
track of such discretionary denials separately from other denials.
Also
with respect to discretion, Judge Higginson had what I thought was a very
interesting point about the perverse incentive that would be created by
adopting the states’ viewpoint on what evidences a proper exercise of
discretion. If a high approval rate for
those applicants meeting the written policy criteria is evidence of a lack of
discretion, does that mean that executive agencies need to be careful not to
comply with their written policies too well? He came back to this again later in the
argument. This too struck me as a
compelling point, because the implication of the states’ argument is that
executive-branch policies not meant to confer enforceable rights on the public
may only be defensible if the administration is careful to be arbitrary and
unpredictable, allowing lower-level officers to make decisions without any
meaningful guidance from their superiors—which would be a very strange way to
run the executive branch, and a very strange policy to mandate as a matter of
administrative law.
Judge Higginson
also pointed out that in one of the cases the states have cited, the remedy for
an agency supposedly not exercising the discretion that it claimed to be
exercising was remand to the agency. But
he seemed potentially convinced by TSG Keller’s response that this possibility
would be more relevant to the merits than to the stay.
In an
interesting exchange towards the end of TSG Keller’s argument, both he and Judge
Elrod seemed to say that if it were “just deferred action” this would be a very
different case. It seems to me, however,
that the difference is not so clear, because once you get “just deferred
action” you are eligible for an EAD under the existing regulations, as I
have explained previously.
In his
rebuttal argument, AAG Mizer argued that deferred action has always conferred
lawful presence, and that Congress has acknowledged that.
Judge Elrod
pressed AAG Mizner during his rebuttal regarding what scheme Texas could use to
decide whom to give driver’s licenses to, that would not necessarily result in
the grant of licenses to DAPA recipients, as the U.S.’s argument had seemed to
suggest was possible. AAG Mizer
indicated that Texas could come up with a classification scheme not relying on
employment authorization, as long as there was a legitimate state reason for
that classification scheme.
Judge
Higginson followed up with an interesting question about whether Congressional
appropriations sufficient to remove all 11 million unauthorized aliens would
mandate that this be done. AAG Mizer
responded there would be an impoundment problem with the funds not being
utilized for their intended purpose in that hypothetical, but that the
government would still have some residual discretion to consider foreign policy
and humanitarian concerns and so on.
Regarding
the “status quo” standard for a stay, Mizer points them to Justice O’Connor’s
stay opinion in INS v. Legalization Assistance
Project, 510
U.S. 1301 (1993) (O’Connor, J., in chambers), regarding the injury that the
federal government suffers when the judicial branch interferes in its internal
processes.
At the
end of the argument, Judge Elrod pushed AAG Mizer regarding whether there would
be significant benefits granted during a period after any lifting of the stay
that would be difficult to unwind if the preliminary injunction were ultimately
affirmed. She did not seem convinced by
his response.
Based on this oral argument, the most difficult
prediction appears to me to be what view Judge Smith will take on the
merits. Although it seemed from Judge
Smith’s questions regarding Massachusetts v. EPA that he was inclined to find in favor of the plaintiff
states with regard to standing, his questions did not reveal his view of the
merits to the extent that Judge Elrod’s did.
Judge Higginson was also a bit harder to read than Judge Elrod, but on
balance it seems from the oral argument that he is more likely to favor the
federal government’s position. Even if
Judge Smith and Judge Elrod were both to agree that the plaintiff states had
standing, however, a stay could still be granted if Judge Smith were to agree
with Judge Higginson’s apparent view of the federal government’s likelihood of
prevailing on the merits. While I am not
sure how likely such an outcome is, it is not a possibility that I would entirely
rule out based solely on the oral argument.
