Border Patrol agents detain illegal immgrants near Mission, Tex., 2013. (John Moore/Getty)

The Supreme Court of the United States has agreed to review a case challenging arguably the most significant unilateral executive action of the Obama administration, the Deferred Action for Parents of Americans and Lawful Permanent Records program (DAPA). Better known to conservatives as “executive amnesty,” DAPA represents Barack Obama’s signature immigration reform, and a Supreme Court order striking it down would mean that Obama ended his presidency without fulfilling a key campaign promise to permit illegal immigrants to remain in the country and eventually obtain citizenship.


What is DAPA?

DAPA’s roots lie in a related program called DACA — the Deferred Action for Childhood Arrivals program — Obama’s first and smaller “executive amnesty.” Acting through a June 2012 memorandum, the Department of Homeland Security elected to exercise its “prosecutorial discretion” not to expend its “enforcement resources” on illegal immigrants who came to the United States before age 16 but are not older than 30, who have lived in the U.S. for at least five years, who are in school or have graduated from school or who are an honorably discharged veteran, and who pass a background check.

An estimated 1.2 million people are eligible for “relief” under DACA, and more than 630,000 were approved through 2014. In plain English, DACA functionally granted lawful residency to its recipients, effectively granting them amnesty from deportation.


DAPA dramatically expands this program. On November 20, 2014, DHS Secretary Jeh Johnson issued another memorandum once again outlining the agency’s intent to exercise its “prosecutorial discretion” not to expend its enforcement resources. The agency claimed that “limited resources” meant that it could not “respond to all immigration violations or remove all persons illegally in the United States.” Consequently, it would expand DACA by removing the age cap, extend work authorization to three years, and change the date-of-entry requirement.


Further, Johnson’s memo created a new program, granting deferred action to illegal immigrants who have lived in the U.S. continually since before January 1, 2010, and who have a son or daughter who is an American citizen or a lawful permanent resident. Out of the approximately 11.3 million illegal immigrants in the U.S., “approximately 4.3 million would be eligible for permanent presence pursuant to DAPA.”

Why did Texas and 25 other states sue to block DAPA?


The states claimed that the program violated the Constitution, violated federal statutes, and imposed serious financial burdens on state governments. The latter point is critical to the outcome of the case. The allegations of financial harm are the principal ground for claiming that the states have standing to sue. Under standing doctrine, neither people nor states can bring a lawsuit unless they can claim they have suffered a concrete, legally recognized injury. Without standing, no person or state can sue to block even plainly unconstitutional government actions.

Texas claims that DAPA would require it to issue up to 500,000 additional driver’s licenses to illegal immigrants. Under current law, the state subsidizes each license and stands to lose “a minimum of $130.89 on each one issued to a DAPA beneficiary.” Both the trial court and the Fifth Circuit Court of Appeals found that the considerable financial loss gives Texas sufficient standing to challenge executive amnesty.

Why do the states believe DAPA is illegal?

The states make three claims. First: Johnson’s memo violates the Administrative Procedure Act because it didn’t follow the required notice-and-comment procedure for substantive rulemaking. In other words, rule-by-memo is per se unlawful. Second: DAPA would be unlawfully arbitrary and capricious even if the administration followed the rulemaking process. And third: DAPA violates the president’s constitutional duty to “take Care that the laws be faithfully executed.” Put more plainly, the states claim that neither statutory law nor the Constitution gives the president the “prosecutorial discretion” to create a wholesale program of deliberate non-enforcement of the law.



Why does the Obama administration believe DAPA is legal?

The administration’s lawyers essentially argue that DAPA is a mere “policy statement,” not a substantive rule and thus that it is well within the agency’s discretion. A substantive rule is one that creates rights and obligations and is subject to notice-and-comment rulemaking, while policy statements, the administration says, are simply used “for an agency to announce how and when it will pursue (or forbear from) enforcement, in the exercise of its discretion.” Because the memo purportedly requires the administration to make deferred-action decisions on a “case-by-case” basis, the administration claims that its memo creates no “rights and obligations.” Moreover, it relies on both historical practice and longstanding case law to argue that Congress has granted broad discretion to administrative agencies to determine how best to enforce the law — especially given that Congress “has appropriated the funds to remove only a small fraction of [the illegal immigrant] population.” Prosecutorial discretion, the administration argues, is not only permissible — it’s necessary.

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How did the lower courts rule?

Both the trial court and the Fifth Circuit Court of Appeals sided with Texas. The Court of Appeals rejected the administration’s argument that DAPA deferments were truly “case-by-case” and instead noted that the process “prevents officers from conducting case-by-case investigations, undermines officers’ abilities to detect fraud and national-security risks, and ensures that applications will be rubber-stamped.” (Emphasis added.) Thus, DAPA was a substantive rule and as such was required to go through the notice-and-comment procedure.

The court, however, went even further, holding that even if DAPA had gone through notice and comment, it still would have been unlawful. The court explained:

Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status: In general, an applicant must (i) have a U.S. citizen child who is at least twenty-one years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of family-preference visas from a United States consulate. DAPA would allow illegal aliens to “receive the benefits of lawful presence . . . without complying with any of the requirements, enumerated above, that Congress has deliberately imposed.

In other words — according to the court — DAPA doesn’t just change the law, it unlawfully undermines congressional intent:

DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.

The court enjoined the program nationwide, the Obama administration filed an immediate appeal, and the Supreme Court will now have the final word.

What are the stakes?

Writing in The Atlantic, Russell Berman argues that the court’s decision could swing the 2016 presidential election. Yes, a key part of Obama’s legacy will be on the line, but Clinton’s platform is at stake:

Yet the political consequences of the decision will be greatest for Clinton, who is relying on an even more aggressive use of the executive powers of the presidency to convince voters that she can credibly build on Obama’s domestic record even if she’s paired with a hostile Republican Congress. . . . From gun control to Wall Street reform, Clinton’s platform is replete with proposals that don’t require the consent of Congress but could be subject to legal challenge. It’s become a key part of her pitch to voters as she tries to hold off Bernie Sanders: While the Vermont senator might be offering a more ambitious legislative program, Clinton is emphasizing a more realistic agenda given that control of at least the House, and perhaps the Senate, will remain with Republicans.


As Berman notes, an adverse Supreme Court ruling would set a precedent that might eviscerate Clinton’s plans. While Berman may be exaggerating the political impact — how many voters appreciate the difference between a legislative and executive agenda? — the constitutional stakes are quite clear. Simply put, this case may represent the last chance for the foreseeable future to block the extraordinary growth of the regulatory state.

For decades, a combination of congressional inaction and judicial deference has created a legal regime in which executive agencies have enjoyed an extraordinary level of discretion. Traditionally, they have taken broadly worded statutes and “filled in the blanks” with a flood of regulations. Recently, Congress has started leaving deliberate gaps in statutes, purposefully abdicating the lawmaking function to the executive branch. In this case, however, the executive branch has gone even further — drafting memos that not only purport to have the force of law but also explicitly contradict democratically enacted federal statutes.

A loss for Texas would be one more crucial step on the road away from checked-and-balanced federal government and toward an imperial presidency.

A loss for Texas in this case would be one more crucial step on the road away from checked-and-balanced federal government and toward an imperial presidency. The Obama administration has pioneered rule-by-memo not only in the Department of Homeland Security but also in the Department of Education and Department of Justice. In each case, the administration purports to exercise authority granted by statute, but in each case the administration’s directives go far beyond the governing statutes.

A Texas victory, on the other hand, would start the process of limiting executive power and also defibrillating a moribund Congress. For too long, Congress has abdicated its lawmaking responsibility, content to let the executive branch take the credit (and blame) as regulations and memoranda multiply. It’s past time for the most democratic branch of American government to get back in the lawmaking business.

For further research, see the Supreme Court docket for United States v. Texas, and you can read all the briefs filed in the case here.


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