February 21, 2015
This article contains our discussion of the problems in Judge Hanen’s ruling on President Obama’s immigration executive action plan. (The judge placed an indefinite injunction on DAPA and the DACA expansion, thereby delaying their start. The DACA expansion was supposed to begin on the 18th of this month.) As we have made clear in another article, we expect this ruling to be reversed. This article contains the bulk of why we are confident that the administration will prevail in the end.
At the center of this case is the whether the administration is acting within its legal authority to expand DACA and create DAPA. But, the issue of standing (which in this case is whether the states the plaintiffs represent have been harmed by the action) must be settled first. A sheriff in Arizona recently tried to sue the administration on similar grounds but the case was thrown out because he couldn’t prove that his ability to enforce law was harmed in any way. Judge Hanen, on the other hand, did grant the plaintiffs standing, in part by agreeing with their view that the states will have to pay to educate “illegal alien children” as a result of the administration’s actions. This disregards the Supreme Court’s ruling in Plyler v. Doe that it is a constitutional requirement to educate all children. Thus, this particular “harm” comes from nothing less than the Constitution. In general, we think that there is no true injury done to the 26 states on account of the executive orders. Further, when Mississippi sued the administration over the original DACA plan in 2012, the courts found that the state could not demonstrate any harm done to it either–and threw the case out.
Even if standing is assumed to be a non-issue, there are still problems with Hanen’s ruling. The heart of it deals with an alleged violation of the Administrative Procedure Act. This act holds that some proposed or forthcoming executive rules must be published in the Federal Register, allowing for dialogue with the public before implementation, which can take many months. There is no wide agreement or clear-cut Supreme Court guidance on what needs to be put through the Federal Register, so his ruling isn’t absurd. That he gets it wrong, however, isn’t difficult to discover.
The publication requirement only applies to binding, new rules, which are called “legislative rules.” It does not apply to “interpretative rules,” which are just guidelines or clarifications of policy. The administration argued that the initiatives in question fall under “interpretative rules,” and we share this view. Judge Hanen instead ruled that they fall under “legislative rules” and that granting work permits to undocumented immigrants under them is new policy. Thus, he concludes, they ought to have been put into the Federal Register. Because they were not, he has put an indefinite hold on them. We disagree with this view.
To begin with, granting DACA or DAPA isn’t the same as conferring immigration status. It is an exercise of prosecutorial discretion, which Judge Hanen acknowledges the executive has. Though all undocumented immigrants are eligible for deportation, the executive’s right to prosecutorial discretion gives it considerable leeway as to when–or even if–this takes place. For some reason or another, the government may be convinced that it isn’t in U.S. interests to deport an undocumented immigrant, and when this happens it may be called “deferred action” (because the action of deportation is being postponed, perhaps indefinitely).
Deferred action programs (such as DACA and DAPA) are nothing more than dialogues between executive and immigrant, where immigrants get the chance to demonstrate that they meet the executive’s criteria for not being a deportation priority. It may then respond that it’s convinced, promising not to deport. But because this represents no real legal change, it could deport anyway. This is something it cannot do to those with valid status (and no violations). Changes in prosecutorial discretion have nothing to do with new U.S. policy–and everything to do with what the executive interprets is the best way to accomplish its task at promoting U.S. interests. Thus, deferred action programs fall under interpretative rules, and not legislative rules.
Once it is accepted that deferred action programs alone are only interpretative rules, Hanen’s further objection concerning work permits for illegal immigrants falls apart. Current law (§274a.12(c)(14)) deems that those who are in a state of deferred action are eligible for work permits. While they may sound similar, referencing an existing law is very different from creating a legislative rule. It is difficult to see how Hanen arrived at his conclusion with all this in mind. Because the immigration plan did not need to go through the Federal Register, we find that Hanen’s injunction is groundless.