Judge Hanen: Obama’s DAPA and extended-DACA violate the APA

February 20, 2015

Judge Hanen’s decision (attached here) to halt President Obama’s DAPA and extended-DACA programs was the third federal court decision to find serious legal questions with the president’s application of amnesty by executive fiat (see here and here). After finding Texas had the requisite standing for the case to proceed, Judge Hanen gave detailed discussion of Texas’s challenge under the Administrative Procedure Act (APA), which he found “likely to succeed on the merits” chiefly due to DHS’s lack of compliance with the procedural requirements of the APA and lack of discretion to implement DAPA and extended-DACA.

Much of the attention in this portion of the ruling dealt with DOJ’s assertion that DAPA and DACA were exempted from APA-judicial review as an action “committed to agency discretion by law.” Here, Judge Hanen skillfully distinguishes Heckler v. Chaney, a Supreme Court decision used by DOJ as well as the Office of Legal Counsel and amnesty advocates to support the claim that DHS’s discretion in enforcing immigration law simply cannot be challenged.

According to Judge Hanen, the Heckler Court distinguished an “agency’s refusal to take requested enforcement action,” which they found not presumed reviewable, from “an affirmative act of approval under a statute that sets clear guidelines.” This set up a “non-enforcement”/“inaction” versus “affirmative action” dichotomy, the judge found and he stressed that the Heckler Court presumed against reviewability only in instances of the former. DAPA and DACA, in its issuance of work permits and other benefits, although in part an example of “non-enforcement,” were really an “affirmative action” rather than “inaction.”

The judge found that, in addition to its “non-enforcement” of the INA’s deportation laws, DAPA and DACA “award[] legal presence” to individuals deemed deportable by Congress as well as the ability to obtain Social Security numbers and other benefits – Had Plaintiff States complained only of DHS’s mere failure to prosecute, the judge said, “that situation would have been based on the inaction of the agency” and the right to judicial review would have been lost – Importantly, Judge Hanen confirms that “[e]xercising prosecutorial discretion…does not also entail bestowing benefits” – See similar commentary from immigration expert, John Eastman.

In an effort to completely distinguish Heckler’s applicability to DAPA, DACA, and programs like it, Judge Hanen volunteers that its presumption against reviewability would’ve been rebutted anyway. The Supreme Court provided that such a presumption can be rebutted when the statute in question “provide[s] guidelines for the agency to follow in exercising its enforcement powers.” As IRLI closely outlined in its supporting brief, Judge Hanen details the interlocking parts of the INA’s mandatory removal provisions to show that such agency guidelines were present.

Further, Judge Hanen discusses two provisions raised by DOJ as a statutory basis for DHS’s “generalized discretion” to enforce or not enforce our immigration laws, namely, 6 U.S.C. § 202 (“responsibilities” of the DHS Secretary) and 8 U.S.C. § 1103(a)(3) (“general powers” of the DHS Secretary). As IRLI described in its brief, the only discretionary authority allocated to DHS from Congress relates to two specific functions: (1) to establish regulations and “perform other acts” (8 U.S.C. § 1103(a)(3)) and (2) to “appoint employees” – IRLI’s brief also noted that Congress expressly delegated two important mandatory responsibilities to the DHS Secretary in the INA: (1) The “power and duty” to administer and enforce all laws relating to immigration, and (2) the duty to guard against “the illegal entry of aliens” – In finding the provisions that DOJ offered insufficient, Judge Hanen concludes here that if DHS was really conferred such “generalized discretion,” the “logical end point” would be that DAPA and DACA could be made “applicable to all 11.3 million immigrants estimated to be in the country illegally.” (emphasis added).

Hanen’s opinion also rejects DOJ’s assertion that past uses of deferred action established acquiescence on the part of Congress. IRLI’s brief outlines in detail (summarized here) how each of the programs DOJ raises (and more) were eventually rolled back or restricted by Congress. No doubt agreeing with Justice Scalia’s criticism in Noel Canning of Justice Breyer’s “adverse-possession theory of executive authority,” Judge Hanen concludes that “past Executive practice does not make its current action lawful.”

Judge Hanen’s decision to halt DAPA and extended-DACA crucially hinged on finding the program to be a “substantive” rule under the APA and, therefore, in violation of that statute’s notice-and-comment requirements (which DHS failed to commit to). This finding is key as its all that’s needed to strike the program.

Looking at the DACA program (which was found sufficiently predictive of how DAPA would be carried out), Judge Hanen found DAPA and extended-DACA to have “binding effect” on agency officials rather than providing the discretion necessary to frame it as “guidance” or as a “general statement of policy.” From DACA’s highly specific operating procedures was implemented a set of criteria, the judge found, that “severely restrict[ed]” and “virtually extinguished” any room for “case-by-case” analysis on the part of USCIS officials – see Professor Josh Blackman’s similar analysis of the training materials here – The only discretion exercised under DACA was found to be with the secretary himself as he was the promulgator of its legalization criteria.

Finding that DOJ’s labelling of DAPA and extended-DACA as “guidance” to be “disingenuous” and “contrary to the substance” of the programs, he concluded that the programs violated the procedural requirements of the APA.