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Can Executive Legislating Be Deferred?

In promulgating Deferred Action for Childhood Arrivals (DACA) in June 2012, President Obama declared that he would no longer enforce federal criminal and civil laws against the Dreamers—the children of those who came to this country illegally—and left no doubt that he was legislating when he said that he had acted “in the absence of any immigration action from Congress to fix our broken immigration system.” While the Democrats in the House of Representatives had previously passed the Dream Act, “Republicans had walked away from it,” Obama added. Or, as the Ninth Circuit says in its DACA decision DHS v. Regents of the University of California, which is considered in this essay, President Obama had “created by executive memorandum, a sweeping new immigration program.” Now, in three separate cases set for argument on November 12, the Supreme Court will consider the constitutionally and linguistically contorted decisions of the lower federal courts, which have classified DACA as “executive” action by concluding that something unprecedented was really a firmly established practice.

DACA effectively gave permanent residency status to children whose parents had entered the country illegally and brought their children with them. More than 800,000 have qualified for the program and qualification is still ongoing. Two years later, the Obama administration then promulgated Deferred Action for Parents of Americans (DAPA), which likewise suspended immigration enforcement for the illegally-entered parents of the Dreamers. Despite the fact that no state or the Republicans in Congress had ever initiated a suit against DACA, several states sued and argued that by encroaching on the legislative authority of Congress DAPA had violated the separation of powers. That suit succeeded in the 2015 decision, Texas v. United States where the Fifth Circuit held that DAPA was an agency decision “of vast economic and political significance” that was “not authorized by statute” and agreed with the district court below that had labeled DAPA “in effect, a new law” and “a massive change in immigration practice” that went “beyond mere enforcement or even nonenforcement of this nation’s immigration scheme.” In 2017, the Trump administration rescinded DACA, an act that provoked the three cases now set for oral argument. The primary argument of the Trump Department of Justice in the three present cases is that the decision in Texas v. United States about DAPA applies equally to DACA.

The Trump Administration and immigration

DACA is one of the three immigration issues that have dominated President Trump’s term. Currently, it’s in the background compared to the ongoing controversy about Trump’s border wall and the overwhelming of our southern border by huge numbers of aliens claiming that they are seeking “refugee” status. The third issue, Trump’s travel ban against the admission into the country of persons from certain unstable and terrorism-plagued countries, was settled last year. In Trump v. Hawaii, the Supreme Court ruled against the claim invented by the lower federal courts that Trump had violated the First Amendment by effectively disestablishing the Muslim religion. The Court held that the immigration statute at issue by its words gave the President “clear, plain, and broad” discretion.

What is “deferred action” and “prosecutorial discretion?”

It is the “deferred action” of Deferred Action for Childhood Arrivals that is now in dispute. In announcing the details of DACA in 2012, Secretary of Homeland Security (DHS) Janet Napolitano said that such “deferred action” was also an act of “prosecutorial discretion.” (It was and is a crime to enter illegally the country. 8 U.S.C. 1325.). She did not in any way define “deferred action” nor refer to any alleged history of its use in immigration law. In DHS v. Regents of the University of California (2018), one of the three cases set for oral argument and which ruling of the Ninth Circuit is emphasized in this essay, the Ninth Circuit rightly admits that deferred action “is not expressly grounded in statute” and was “of executive invention,” but goes on to conclude that it was lawful anyway. Deferred action has been a “feature” of the immigration system “for decades;” it is based on “executive discretion.”

The Circuit also delivers itself of its own political/legislative justifications, to wit, its decision is additionally based on “the need for uniformity in immigration policy” and the fact that that the executive agencies do not have enough “resources” to enforce every immigration law, citing and quoting a memorandum about resources of the INS General Counsel from forty-three years ago (1976). DACA is permissible executive discretion, the Ninth Circuit holds, “notwithstanding the Fifth Circuit’s conclusion [in Trump v. Hawaii] that the related DAPA programs exceeded DHS’s statutory authority.” (Law & Liberty has previously published an analysis of Trump v. NAACP, one of the two companion cases to Regents. Note especially its treatment of “prosecutorial discretion.”)

Three unprecedented non-precedents

By far the most important and really the only basis, despite its great length, for the Ninth Circuit’s conclusion that deferred action has been in use “for decades,” as that Circuit puts it, are three judicial decisions, two by the Supreme Court and one of its own, the latter of which is essentially an earlier version of the present case (see below). In the first of the three cases that the Ninth Circuit cites as precedent, Heckler v. Chaney, 470 U.S. 821 (1985), a group of death-row inmates asked the Supreme Court to stop their executions because the Food and Drug Administration (FDA) had not specifically approved the lethal drugs for the purpose of human execution. Rejecting their suit, the Court held that the decision was “committed to agency discretion by law” and pointed out that the FDA had insisted that such “enforcement proceedings in this area are initiated only when there is a serious danger to the public health or a blatant scheme to defraud” (emphasis added).

The Ninth Circuit took the Heckler FDA decision not to undertake an approval process for the particular drugs in question, admittedly a decision not to initiate its enforcement authority, as an endorsement of the discretion of the Department of Homeland Security in DACA not to enforce civil and criminal immigration laws. There are several obvious differences. Heckler did not involve the criminal law. It was a limited civil case about an individual regulatory enforcement, not a “sweeping new program.” It involved a handful of people, not the hundreds of thousands of Dreamers. The theme of “prosecutorial discretion” is mentioned but not emphasized in Heckler. Deference to the FDA is the basis of the decision, but the phrase “deferred action” nowhere appears. The analysis and decision is based on the drug laws in situations that are emergencies (“danger”). The separation of powers is never discussed or even mentioned. The legality or constitutionality of a federal regulation or law is not at stake in HecklerHeckler was an isolated attempt by inventive criminal-defense attorneys to create a roadblock to the death penalty sentences of their clients. It is not a precedent for anything.

Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), the second case the Ninth Circuit relied on, did not deal with non-prosecution, but with selective prosecution. Again, the number of plaintiffs was minuscule. Eight United States residents, members of a Palestinian organization, had claimed that they were targeted for deportation for political reasons. The Court ruled 8-1 against them and held that under the relevant provisions of immigration law at issue and “in the context of claims such as those put forward in the present case,” an alien has “no constitutional right to assert selective enforcement as a defense against deportation.” That is: the issue was alleged active enforcement against an extremely small number, the opposite of DACA’s non-enforcement involving a large population. Finding the source of a general concept of “deferred action” not in one of its precedents but in an immigration treatise, the Supreme Court concluded that the INS could use executive discretion “for humanitarian reasons or simply for its own convenience.”

The last case, definitely the most important, is the Ninth Circuit’s own citing and quoting of itself as “precedent” in Arizona Dream Act Coalition v. Brewer, 855 F. 3d 957 (9th Cir. 2017), a case whose subject is DACA and which is in reality part of the current Regents case. Upon the promulgation of DACA in 2012, Arizona had immediately enacted a state statute seeking to limit its effect. The statute excluded the Dreamers from state public benefits, including drivers’ licenses. With little reliance on the federal immigration statute but with heavy reliance on “equity,” the Ninth Circuit held in Brewer that “the exclusive” federal authority in DACA had preempted Arizona’s attempt to “classify noncitizens.” The Circuit also spent a substantial portion of its opinion speculating about a possible Equal Protection violation, but in the end, having made its point and set the desired tone, modestly limited itself to saying only that the Arizona statute “may well violate” Equal Protection. The Circuit upheld an injunction against the Arizona statute. Without the slightest nod to whether there was a separation-of-powers issue, the Brewer decision said that it was “well settled” that the Secretary of Homeland Security could “exercise deferred action, a form of prosecutorial discretion.” As the preface to Regents’ devising of the expansive executive power of “deferred action,” Brewer referred to “deferred action” more than fifty times.

The overall Brewer and Regents result is a closed circle dealing with the same legal concepts and conclusions on the same subject only one year apart in the same appellate court. Contrasted with the meager judicial “precedents” for deferred action, including from the Supreme Court, the real and only supposed “precedent” for Regents’ “decades” of “deferred action” is Brewer. Thus, in Regents the Ninth Circuit portrayed its conclusions as having some other basis than its own previous conclusions when there was no such basis.

Apart from highly specific instances in which the immigration laws are temporarily suspended — a temporary suspension of a deportation proceedings under 8 USC 1227(d)(2), for example, — “deferred action” is not defined in immigration law, and it has never been written into the law by Congress. It was invented by DACA. There have been some instances of what can be called deferred action, since World War II and during the Cold War, but all of them were ad-hoc, of an emergency nature, and limited to certain groups who were effectively refugees (a separate immigration category) of one sort or another, for example, Vietnamese refugees from the Vietnam War. And all, unlike DACA, were later endorsed by acts of Congress. There was a political consensus for all. There is no precedent for a measure like DACA, concretely debated and rejected by Congress, to have been, nonetheless, put into effect by the president.

The argument from pity, the public consensus, and judicial discretion

Perfectly in keeping with the current deluge of op-eds about the Dreamers and the wrongful actions by Trump immigration officials and immigration foes in general, the Ninth Circuit opened its Regents decision with its own 200-word op-ed: “It is not hyperbole to say that [DACA beneficiary and plaintiff] Dulce Garcia embodies the American dream. . .” In order to overcome the “cruelty and wastefulness” of deporting persons like Dulce Garcia, DHS had promulgated DACA in 2012. But the Trump administration subsequently moved to end the program in 2017. “Why?”, the Ninth Circuit, cries out. Why act against such “productive – indeed, inspiring” young people? In ruling for Dulce Garcia and “hundreds of thousands of young dreamers like her,” the Circuit goes on to assert to that in carrying out DACA, “the Executive” has been making immigration law “democratic[ally] accountable to the people.”

The DACA usurpation of the legislative power may not be as dramatic as President Truman’s nationalizing the steel mills in the 1952 steel strike, which resulted in the Supreme Court overturning the takeover and holding in the landmark Youngstown case that “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” On the other hand, what issue today is more comprehensive and nationalized than immigration law and practice? Unlike the 1952 steel strike, religion is playing a major role, most obviously in the public debate but legally as well. In Regents, 127 religious organizations, including Catholic, Methodist, Episcopal, Quaker, Mennonite, Jewish, and Islamic, et al, have filed a brief in support of DACA. Likewise, in their brief in favor of DACA, 126 corporations, including Amazon, Facebook, and Google, have stated that “rescinding DACA will harm U.S. companies and the entire economy.” And, of course, in addition to religious bodies and corporations, the entire media-academic complex is leading the public advocacy on behalf of the Dreamers.

In light of these particular and unique political circumstances, including the seeming acceptance of DACA by Congress, it might take a great deal of fortitude for the Supreme Court to rule based on the United States Constitution. With a probable decision in February, that is, with almost a full year of the Trump administration remaining, a decision endorsing the judicial supremacy described in the Ninth Circuit’s Regents’ decision might lead the lower federal courts to just take over all of the day-to-day operation of U.S. immigration law until the end of Trump’s term. And that temptation will be all the stronger in light of the uncertainty about the results of presidential and congressional elections in 2020. A Democratic win of the presidency would not only institutionalize DACA but would, in light of a new and almost unlimited authority to “defer action” based on executive “discretion,” certainly mean a comprehensive re-structuring of the administration of the immigration laws.

And of what other laws?

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