January 7, 2015
On January 15th the Southern District Court of Texas will hear the biggest constitutional challenge to date against the Obama Administration’s latest executive action on mass amnesty. Following the program’s November 20 announcement, Texas Attorney-General Greg Abbott, along with twenty-four other states’ attorneys-general, applied for an injunction in the Texas federal court claiming the Department of Homeland Security’s Directive “unilaterally suspends the immigration laws as applied to 4 million” illegal aliens in violation of the Constitution and the Administrative Procedures Act.
Specifically, the multi-state complaint argues that the Directive’s “removal of the deportation threat, combined with the incentives to stay”, such as Social Security and Medicare, which the White House has said recipients will be eligible for, makes “remaining in the United States far more attractive for the affected classes of undocumented immigrants.” Further, the states claim, as seen by the DACA-induced ‘unaccompanied alien minor’-crisis this past spring, the Directive will “certainly trigger a new wave of undocumented immigration” leading to another humanitarian crisis and even greater costs to state budgets. Drawing from presiding Judge Andrew Hanen’s discussion in a previous court opinion, the states also argue that grants of deferred action, such as the Directive, will “increase human trafficking” and aid the “Mexican drug cartels” that control trafficking activity.
Citing Supreme Court precedent, the states claim that the Directive violates the “justifiably enforceable” take care that the laws be faithfully executed-clause by allowing the president to rewrite immigration laws “under the guise of executive ‘discretion.’” Deferred action programs structured to have near 100 percent acceptance rates, they argue, is a “de facto entitlement” and a blanket policy that “would require a change to the law” if proper constitutional procedure was followed – To note, the highly similar DACA program, which DHS has admitted is administered with “lean and lite”-scrutiny, boasts an acceptance rate of over 95 percent.
Among other things, the Justice Department in their response argues that the states’ request for an injunction is an effort “to overturn and effectively commandeer federal enforcement prerogatives.” This, according to DOJ, “cannot be reconciled with the Executive’s well-recognized discretionary authority under the immigration laws to prioritize enforcement resources… or with the practical impossibility and humanitarian cost of removing every such alien regardless of consequence.” But by arguing that the only way for DHS to keep within its funding limits is to confer blanket amnesty is to present a false choice between mass legalization and mass deportation and to refuse consideration for a strategy of attrition. As commentators have pointed out, a strategy that removes the economic incentives of illegal immigration would cost much less and is far more practical than any imagined mass deportation campaign.
As for the “humanitarian costs” incurred by an injunction, DOJ cites “family unity” as a chief concern behind the Directive. DOJ lawyers note that the Supreme Court’s majority opinion in Arizona v. US mentioned the existence of US-born children as one of many factors in deciding removal relief, however, that Court was specifically speaking to “[t]he equities of an individual case” rather than blanket relief. (emphasis added). DOJ also fails to address the obvious counter-argument that by choosing to illegally enter and reside in the United States many families voluntarily put themselves in a situation where they could be disunited.
The states also claim the Directive violates two provisions of the Administrative Procedure Act. Procedurally, they allege the Directive violates the requirement that all “rules” must generally go through a “notice-and-comment” period, which is designed to ensure public participation in the rulemaking process – It should be noted that although DHS failed to go through proper notice-and-comment procedure here, it did follow the process when implementing DACA (although it waited until the day applications opened to do so) – DOJ argues the Directive is not a “rule” but a “general statement of policy” and therefore exempt from the APA’s notice-and-comment requirement.
According to the Attorney General’s Manual on the Administrative Procedure Act, general statements of policy are “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” In deciding whether or not an action is a rule, the agency must determine whether the action simply “interprets existing law or represents a substantive change to existing law.” Keeping the states’ Take Care claims in mind, the D.C. Circuit has also stated, “an agency can declare its understanding of what a statute requires without providing notice and comment, but an agency cannot go beyond the text of a statute and exercise its delegated powers without first providing adequate notice and comment.” (emphasis added).
The states claim the Directive is also substantively unlawful under the APA. Citing several INA provisions curtailing the reunification of illegal aliens and their legal family members, the states allege DHS acted “arbitrarily and capriciously” and generally exceeded their authority by “creat(ing) legal rights for millions of undocumented immigrants.” By doing so, the states argue, DHS is “rewriting the immigration laws and contradicting the priorities adopted by Congress.”
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