President Obama’s attempts at immigration reform faced another setback last week from the federal judiciary. A three-judge panel of the U.S Court of Appeals for the Fifth Circuit ruled that the Department of Homeland Security (DHS) cannot pursue a program that allows certain illegal immigrants to stay and work in the United States.
Texas, as well as other states, brought the suit alleging that DHS violated the Administrative Procedure Act as well as the “Take Care Clause” of the U.S. Constitution when it adopted a program called “Deferred Action to Parents of Americans and Lawful Permanent Residents” — or DAPA, for short. The program would “defer action” against many undocumented immigrants who have children who were born in the United States. If granted a deferred action, these immigrants would be categorized as “lawfully present” for up to three years. Being lawfully present would qualify immigrants for Social Security, Medicare, tax credits, and the ability to work legally in the United States.
Texas brought suit because DAPA would cost the state money. Under Texas law, lawfully present immigrants can apply for a driver’s license that is paid for by the state. Texas claimed that issuing these licenses to additional immigrants deemed lawfully present in the U.S. would cost them several million dollars, so it sought a preliminary injunction to halt the program.
A trial court in February prohibited DHS from initiating the DAPA program until the case could go through a full trial, finding that it was likely that the Obama Administration failed to follow proper procedures in adopting its program. The Administration appealed to the Fifth Circuit, asking for permission to begin running the program even as the case goes to a full trial.
The federal government argued that the DHS program is a proper use of agency discretion not to prosecute immigration law, and that it should be treated as a policy rather than a regulation – the former which does not require the government go through special procedures to adopt. Texas argued that the program really is a regulation in disguise and therefore needs to go through the same processes as other substantive rules.
The panel of the Fifth Circuit Court of Appeals sided 2-1 with the lower court, ruling that the DAPA program is a substantive rule subject to the requirements for new regulations. These requirements mandate that federal agencies notify the public and allow interested parties to comment on the rule before it goes into effect.
The appellate judges reasoned that DAPA does not leave agency personnel enough discretion to be classified as a policy, so it should be treated as a substantive regulation. They paid particular attention to a public statement made by President Obama discussing “consequences” for officials who do not follow the guidance.
The court also examined a similar program, Deferred Action for Childhood Arrivals (DACA), to determine how DAPA would be applied. The DACA program granted lawful presence to immigrants who were illegally brought to the United States when they were children. To determine how the DAPA program would be applied, the district court analyzed the denial rates of DACA because the program stated that it would have similar processes to DACA.
DACA had a low rate of denying applications, and the court determined that DAPA would as well. The court referenced statements that both programs were set up to “rubberstamp” the applications, which were made by a representative of the employees processing the applications.
The appellate court also held that even if the program had followed the procedures for a substantive regulation, DHS still went beyond its authority. The majority used the so-called Chevron test to examine whether Congress clearly spoke to whether DHS has authority for a similar program, and whether the specific program is reasonable in light of the statute.
The court looked to provisions of the Immigration and Nationality Act (INA) to see whether Congress spoke clearly on this specific issue. One provision of the INA allows parents of citizens to become legal permanent residents if they have been in the country for a decade and removal would result in “exceptional and extremely unusual hardship” to the child. DAPA could grant lawful presence to immigrants who have been in the country for as few as five years, without reference to the effects on the child. Although the legal permanent residency and lawful presence are different, the court compared them because both changes in immigration classification give benefits.
The court also found the DAPA program unreasonable under the Chevron test. Relying on the links between immigration status and employment, the judges thought it would be unreasonable to construe the statute in a way that gave such a large number of immigrants the ability to find lawful employment, since one of the goals of immigration law is to restrict foreign competition for jobs. The court rejected comparisons to other programs that granted lawful presence, distinguishing them as more targeted and prompted by unexpected circumstances.
The one dissenting judge, Judge King, argued that the court had no ability to hear the case, but even if it did that DHS was well within its authority. She wrote that Texas was not even able to come into court because it lacked standing to sue. In her view, the cost to Texas of issuing licenses was self-inflicted because Texas has chosen to tie eligibility to federal status and remains free to change its law. She also asserted that the DAPA program constitutes an exercise in prosecutorial discretion, which cannot be challenged in court.
The administration is reportedly planning to pursue an appeal to the Supreme Court. If the Court were to accept the appeal and if it were to hand down a decision in favor of the government before the end of next June, the Obama Administration would have a relatively short amount of time to implement the program before the president’s second term ends.