Symposium: Will the court reach the merits…of DACA?


September 12, 2019

By Christopher J. Hajec

At first, it might seem that a trio of cases before the Supreme Court involve only the lawfulness of the government’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program, not the lawfulness of the program itself. After all, in the abstract, it is possible both that DACA is unlawful and that the Department of Homeland Security failed to explain itself sufficiently, or otherwise violated the Administrative Procedure Act, when it rescinded DACA. Because the plaintiffs are challenging the rescission, it might seem that the Supreme Court could, if so inclined, simply affirm their victories in the lower courts, and not concern itself with the lawfulness of DACA.

In fact, however, the court will have a strong reason to assess the merits of DACA. As it turns out, that assessment is necessary in determining whether the federal courts have jurisdiction in these cases.

The Supreme Court has long recognized that it has an obligation to determine the presence or absence of its own jurisdiction, and that of the lower courts, even if the parties have not raised or argued the issue. It also has a bedrock obligation, as a court of law, not to order or give effect to that which is unlawful.

Here these obligations work together to bring the merits of DACA front and center. The second obligation means that, even if the plaintiffs “win” on rescission, the Supreme Court cannot reinstate DACA – if DACA is unlawful. Rather than give effect to an unlawful rule, the court must restore the last lawful regulatory state of affairs – which, if DACA is unlawful, was the status quo pre-DACA.

But the necessity of that restoration would have an impact on the court’s jurisdiction in these cases – indeed, it would obliterate it.

The state of regulation before DACA, of course, would be of no help to the plaintiffs; it would do nothing to redress their claimed injuries. Thus, even if the plaintiffs “win” on the rescission issue, they gain nothing – if DACA is unlawful. Under the Constitution, if the plaintiffs can gain nothing from their lawsuit, if their injuries cannot by redressed by it, they lack standing to sue. Federal courts have no jurisdiction under the Constitution to decide abstract questions that do not affect the parties before them. If plaintiffs will lose even if they win – as they will if DACA is unlawful – they have no business in federal court, and the federal courts have no business hearing their cases.

So if the plaintiffs lack standing, the court lacks jurisdiction, and should dismiss these cases – leaving the rescission of DACA in place.

The jurisdictional question, then, depends on the question of whether DACA is unlawful. There are numerous reasons for thinking that it is.

Famously, President Barack Obama said repeatedly (before DACA was issued) that he lacked the authority under the Constitution to grant an executive amnesty of DACA’s scope. No doubt he conceded this because immigration law requires that persons found to be unauthorized immigrants be put in removal proceedings. Of course, if an agency is underfunded, it may, and should, fulfill its statutory mandate as best it can within the constraints of its limited resources. But DACA was not created because of a lack of resources; DHS already spent scant-to-no resources removing noncriminal unauthorized immigrants who had been brought to this country as children, because it considered them very low priorities for removal.

Rather than being an adaptation to lack of resources, DACA reflected a policy judgment that its beneficiaries should be free to live and work in the United States without fear of removal. This policy judgment, however, was at odds with that of Congress, which had rejected a Dream Act more than once. Also – and fundamentally – if DHS can make so sweeping an exception to its mandate to remove unauthorized immigrants, there is no discernible limit to its authority to craft administrative amnesties, even much bigger ones than DACA. In no provision of law did Congress ever bestow such power on DHS.

Moreover, a major purpose of the Immigration and Nationality Act is to protect American workers. For example, the INA criminalizes the hiring of unauthorized immigrants to preserve jobs for American citizens. Nowhere in the INA does Congress give DHS the power to overthrow statutory protections for American workers by issuing work authorizations to unauthorized immigrants on a massive scale, as DACA does. To be sure, some have interpreted certain broad provisions in the INA to give DHS the authority to authorize work for any alien or class of aliens it chooses. But if so interpreted, these provisions provide no intelligible principle to guide the agency in the exercise of this authority, and so run afoul of the Supreme Court’s constitutional doctrine that Congress may not delegate limitless power to an agency.

DACA is also unlawful for a more mundane, even technical, reason: it did not go through the public notice-and-comment process required for substantive rules issued by agencies. DACA is a substantive rule because the memorandum creating it did not leave the agents who administer it any real discretion to grant or deny its benefits to those meeting the program’s criteria; rather, almost comically, agents were instructed to exercise their “discretion” by granting these benefits. As a substantive rule that did not go through notice and comment, DACA is a nullity.

In short, if a majority of the Supreme Court is inclined to believe that DACA is unlawful – for the reasons just sketched or for other reasons – the court must, in the course of exercising its duty to determine its own jurisdiction, assess DACA’s lawfulness or lack thereof. And if it concludes that DACA is unlawful, its only course will be to dismiss these cases for lack of jurisdiction.

Christopher J. Hajec is a director of litigation at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of illegal migration..

Also published at: Christopher J. Hajec, Symposium: Will the court reach the merits…of DACA?, SCOTUSblog, September 12, 2019.

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