By Zan Khan, Esq., of Youman, Madeo & Fasano, LLP., on April 14, 2015
President Obama's executive action on immigration has been the focus of political and legal controversy since its initial announcement on November 20, 2014. The president's executive action is designed to offer limited yet genuine relief to millions of immigrants and their families, and its reverberations would, by extension, ripple throughout the American political, economic, cultural, and moral landscapes with implications for all of us. We all have skin in this game. It is no wonder then that leaders from the highest offices of federal, state, and local government have spent their political capital extending themselves into the controversy through public advocacy and amicus briefs. Needless to say, the struggle is felt even more tangibly on the ground at the grassroots level. Often touted as a nation of immigrants, it seems fitting, perhaps ironically so, that every level of American society should wrestle with such a potentially pervasive change in immigration policy.
There has been an interesting bit of baton-passing between the branches of the federal government. While the immigration debate has been a part of the American political consciousness for centuries, one could argue that this latest flare-up had its origins in Congress when it failed to pass a comprehensive immigration reform bill after its efforts began to manifest in 2013. The baton was then passed to - or rather taken by - the executive with President Obama's executive action announcement in November of last year. The baton was passed again to the judiciary shortly thereafter when the Texas-led coalition of states sued the federal government over the president's executive action in Texas v. U.S. It's hard to pinpoint with any precision where or when the drama began, but it is safe to say it currently rests primarily before the courts or, more specifically, before the United States Court of Appeals for the Fifth Circuit.
Suffice it to say that the manner in which Texas v. U.S. continues to play out has thus far proven fascinating, not only for its practical implications, but for its arguably unprecedented legal posture as well. For now, the nation is eagerly awaiting the Fifth Circuit's forthcoming decisions on 1. the government's motion to stay the injunction on the president's executive action, and 2. the appeal of that injunction on the merits. While it's still a bit early to start counting chickens, the Fifth Circuit issued a decision last week in Crane v. Johnson which seems to signal fortune on the horizon for the millions and more who are relying on implementation of the president's programs.
Before we consider the implications of Crane v. Johnson, let us take stock of some of the more notable developments of Texas v. U.S. from the past few months:
November 20, 2014 - President Obama makes his landmark executive action announcement. Most controversial among the number of immigration policies affected or created therefrom is the new Deferred Action for Parental Accountability (DAPA) program, which would grant limited protection and employment authorization for a period of three years to an estimated five million undocumented parents of U.S. citizen children. Also included in the president's immigration action is an expansion to his earlier Deferred Action for Childhood Arrivals (DACA) program, which was implemented prior to the 2012 presidential election.
December 3, 2014 - Texas sues the federal government in federal district court over DAPA and the DACA expansion in Texas v. U.S. Current Governor and then-Attorney General of Texas, Greg Abbott, led a coalition of 26 states - over half the Union - in the suit. The states' decision to file suit in the Southern District of Texas located in Brownsville is seen by some as an intelligent exercise of forum-shopping, particularly in light of Judge Andrew Hanen's 2013 decision in U.S. v. Nava-Martinez, a criminal case relating to alien smuggling. In his 2013 decision, Judge Hanen issued a searing indictment of what he viewed as "the apparent policy of the Department of Homeland Security of completing the criminal mission of individuals who are violating the border security of the U.S." The plaintiffs' brief filed in Texas v. U.S. quoted from U.S. v. Nava-Martinez, in which Judge Hanen described the government's behavior as "dangerous and unconscionable" and suggested that "DHS should cease telling the citizens of the United States that it is enforcing our border security laws because it is clearly not. Even worse, it is helping those who violate these laws."
February 16, 2015 - Judge Hanen finds in favor of the plaintiffs and issues a preliminary injunction on President Obama's executive action. He found that the plaintiffs had sufficiently articulated a concrete and particularized injury by way of an in-depth discussion of the potential economic burden on the states imposed by DAPA resulting from state driver's license programs. In his decision, the judge repeatedly referenced what he described as "the failure of the federal government to secure the borders" through insufficient security and "minimal detention periods" which, in conjunction with programs like DAPA and DACA, encourage illegal immigration. The judge reasoned that DAPA extends beyond the government's recognized right to exercise discretion and constitutes "total abdication" of its enforcement duties as well as an effort to "actively thwart" the will of Congress through enacting what is effectively "a new law." The judge ultimately enjoined DAPA and the DACA expansion, finding that the plaintiffs had standing and that the government had erroneously legislated a substantive rule in noncompliance with the notice-and-comment requirement under the Administrative Procedure Act (APA).
February 23, 2015 - The Justice Department files an appeal of the injunction with the Fifth Circuit as well as a motion to stay the injunction with Judge Hanen, asserting that the judge lacked the authority to enjoin the executive action and warning of the harm to the public should the programs not be promptly implemented. In its motion, the government requested a complete stay of the injunction or, in the alternative, that the stay be confined to Texas or to the plaintiff states, as the judge's decision finding a sufficiently articulated injury focused on Texas specifically. The plaintiff states file an opposition to the government's motion to stay in district court on March 3, 2015.
March 12, 2015 - The Justice Department files a motion for an emergency stay pending appeal before the Fifth Circuit in which it couched the district court injunction as "unprecedented and wrong," attacking Judge Hanen's injury analysis and reaffirming the federal government's exclusive authority to enforce immigration laws. The government requested a complete stay or, in the alternative, that the injunction be confined to Texas or to the plaintiff states.
March 19, 2015 - Judge Hanen oversees a hearing concerning three-year grants under DACA during which he chides the Justice Department over its representations related thereto, suggesting that sanctions would be a possible consequence of misleading him on the timeline. The government previously opposed the hearing in a supplemental filing made on March 12, 2015, in which it asserted that the hearing is not germane to the stay motion.
March 23, 2015 - The Texas-led coalition of plaintiffs files an opposition to the government's stay motion before the Fifth Circuit, asserting a lack of any emergency justifying such a motion pending appeal.
March 26, 2015 - The Fifth Circuit denies the Justice Department's request for an expedited ruling on the emergency stay.
March 30, 2015 - The Justice Department files a sixty-nine-page brief the Fifth Circuit in support of its appeal of the preliminary injunction. In its brief, the government reaffirmed its unique authority to enforce immigration laws and challenged Judge Hanen's reasoning on each issue presented in the initial injunction request.
April 6, 2015 - The Fifth Circuit entertains 15 amicus briefs, including one from Republican Senators Cruz and Cornyn in support of the injunction as well as one from 181 House Democrats opposing the injunction and enthusiastically supporting the president's executive action. Another brief advocating for the president's executive action is filed by 71 cities and counties including New York, Los Angeles, Chicago, and Denver, as well as the National League of Cities and the U.S. Conference of Mayors. Other amicus briefs in support of the president's executive action include one filed by the American Civil Liberties Union in conjunction with 150 labor and immigrants' rights groups and another filed by 109 law professors in which they reference their combined "more than 1,500 years of experience in immigration law" in support of the president's programs.
April 7, 2015 - Judge Hanen issues a written opinion denying the government's request to stay his preliminary injunction in which he reaffirmed his initial reasoning and alleged misconduct on the part of government counsel for misleading him on the issue of when the DACA expansion was actually implemented.
*On the same date, the Fifth Circuit issues a decision in Crane v. Johnson, which was an action brought by several ICE agents and the State of Mississippi against Secretary of Homeland Security Jeh Johnson over the original DACA program. The Fifth Circuit affirmed the district court's dismissal of the suit for lack of subject matter jurisdiction, finding that the plaintiffs had no standing based on a failure to allege a sufficiently concrete and particularized injury.
The Fifth Circuit's decision last week in Crane v. Johnson might portend misfortune for the Texas-led coalition in Texas v. U.S. to the extent that the court's reasoning turned on the federal government's wide discretion in matters of immigration enforcement. While Crane v. Johnson was about DACA, DAPA is, at root, based on the same authority, to wit the federal government's unique authority to enforce immigration laws. In its decision, the Fifth Circuit repeatedly cited the Supreme Court's 2012 reaffirmation of the federal government's broad discretion in Arizona v. U.S. To the extent that primacy is an insightful tool of legal construction, it should be noted that the Fifth Circuit chose to begin its decision with three citations to Arizona v. U.S. and the following quote therefrom: "The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens."
The Fifth Circuit also acknowledged in Crane v. Johnson that DACA, both in its original and expanded forms, provides officers discretion to be employed on a case by case basis. This is a key signal from the Fifth Circuit, as the plaintiffs in Texas v. U.S. argue that the executive action effectively constitutes a new law to be enforced uniformly without case by case analyses.
It's also worth noting that Crane v. Johnson was decided last week by a three-judge panel consisting of two Republicans. The opinion was written by a Reagan appointee with a concurrence from a Bush appointee. It was announced yesterday that Friday's oral arguments on the stay motion in Texas v. U.S. will be heard by a different panel consisting of two Reagan appointees including Judge Jerry E. Smith, who is a famously staunch conservative, even in Fifth Circuit parlance. Judge Smith's presence on the panel has generated some unease among supporters of the president's programs, as there is some doubt as to how much deference he will pay to his colleagues' decision in Crane v. Johnson. Proponents of the president's executive action should, however, take comfort in the fact that this will not likely be the same panel to decide the broader appeal on the merits.
There is, however, some reason to believe the Fifth Circuit may distinguish Crane v. Johnson from the present case. Not unlike Judge Hanen's decision in Texas v. U.S., Crane v. Johnson turned on an analysis of injury as a requisite to standing. The difference, should the court seek to articulate one, is that Mississippi alleged economic harm generally, while Texas alleged harm more specifically stemming from the burden of having to issue new driver's licenses. The Fifth Circuit stated as follows in Crane v. Johnson: "The district court held that Mississippi's alleged fiscal injury was purely speculative because there was no concrete evidence that Mississippi's costs had increased or will increase as a result of DACA. Based on the record before the district court, we agree." The operative clause there might be "Based on the record before the district court." Judging from Judge Hanen's much longer, more intricate analysis, the record in Texas v. U.S. is presumably more detailed. And, as noted above, the injury alleged by the plaintiffs in Texas v. U.S. is articulated with more particularity than that in Crane v. Johnson. Judge Owen stated in her concurrence in Crane v. Johnson that it is "not always necessary to present concrete evidence that an injury has occurred or will, beyond question, occur," which may or may not give insight into her leanings in Texas v. U.S.
Still, the Fifth Circuit's reading of injury from last week signals a different approach than that employed by the district court in Texas v. U.S. Judge Hanen placed great stock in the plaintiff states' claims of harm while dismissing outright the government's assertions that DAPA would in fact generate revenue and grow the economy. In stark contrast, the Fifth Circuit already recognized in Crane v. Johnson that DACA might have a positive effect on state budgets. If we can glean anything from Crane v. Johnson, it is that the Fifth Circuit is far less dismissive of the government's position.
Crane v. Johnson may also offer insight into how the Fifth Circuit will decide the notice-and-comment issue. In Crane v. Johnson, the court reasoned that DACA constitutes a non-binding, discretionary policy, which contradicts Judge Hanen's reasoning that DAPA constitutes binding rulemaking and is thus bound by the APA's notice-and-comment requirement.
In sum, the Fifth Circuit's decision in Crane v. Johnson contains some signals that should encourage supporters of the president's executive action, including indicators that it will engage in a very different injury analysis than that of the district court as well as an unqualified reaffirmation of the government's broad discretion in matters of immigration enforcement. Should the court grant the stay motion after Friday's oral arguments, it will come as little surprise after last week's decision in Crane v. Johnson. Should it deny the stay motion, however, the millions relying on these programs should not lose heart, as the underlying appeal won't likely be decided for another couple of months.
However the drama ultimately plays out, it's important not to forget that this controversy is merely a microcosm of the larger immigration reform debate. The baton will ultimately have to be passed back to Congress, and when that happens, the outcome will turn on how much political will there is left behind it. While the president's executive action would be a significant step in the right direction right now, it would also use up a not insignificant portion of the political capital required to pass comprehensive immigration reform in the future. Should the Republican opposition to the president's executive action prevail in Texas v. U.S., it will have much less political capital left over to oppose immigration reform down the road, and the resulting hardship to the immigrant community will generate more momentum for meaningful reform. While it might dishearten some that the fate of so many should turn on the political calculations of so few, there might at least be some comfort to be found in the fact that the battle does not start and end with Texas v. U.S.