Deferred Action for Federal Government Accountability


DAPA—short for the clunky “Deferred Action for Parental Accountability,” or maybe “Parents of Americans” (I’ve seen both titles)—is the Obama administration’s 2014 policy seeking to defer the deportations of roughly 4 million aliens who are the parents of citizen children or permanent residents. About half the states, led by Texas, filed suit to block the program. In February, U.S. District Judge Andrew S. Hanen issued a preliminary (and nation-wide) injunction against the implementation of the program. Yesterday (April 7), Judge Hanen refused to lift the injunction and, on the occasion, expressed his annoyance with the government’s “misconduct (link no longer available).” 

Meanwhile, the U.S. government has submitted its opening brief in its emergency appeal to the Fifth Circuit. At considerable length, the brief argues that the plaintiff-states’ lack standing to sue. The only “injury” identified by Texas, says the government, is the cost of issuing driver’s licenses to the beneficiaries of deferred action; and that injury is self-inflicted and, besides, offset by benefits to the states, such as increased tax collection from immigrants who may now be lawfully employed. Moreover, says the government, for purposes of the states’ administrative law challenge that could give them statutory standing—to wit, their claim that the Department’s policy required notice-and-comment rulemaking—the states aren’t within the “zone of interest” contemplated by the immigration laws.

It’s understandable that the government should put most of its eggs in the jurisdiction basket. For one thing, if the feds prevail on the point, the entire case—not just the preliminary injunction—goes away. For another thing, the government’s position on the merits seems a tad thin, at least to me. The national government insists that it’s simply exercising its enforcement discretion not to deport and to concentrate its resources elsewhere, as opposed to creating a whole new program; and exercises of enforcement discretion are presumptively unreviewable. I’m not quite sure that’s an accurate description, for reasons explained by Josh Blackman.

In any event, as Michael McConnell observed in a Wall Street Journal op-ed, Judge Hanen’s opinion and order leave the government’s prosecutorial discretion untouched. The key fact here is that DAPA affirmatively makes millions of immigrants eligible to work legally in the U.S.; and that conferral of a benefit can’t be an exercise of prosecutorial discretion.

Not so, says the government (echoing an argument suggested in a made-to-order opinion from the Office of Legal Counsel and developed in a long balkanization post by Marty Lederman): the fact that aliens subject to deferred action may be legally employed is due to a longstanding (then-) INS regulation, which was adopted in 1981 through notice and comment and which isn’t being challenged here. It’s just the automatic operation of the regulation, not DAPA, that confers the benefit. Neat.

I may be obtuse but I frankly don’t get that. It seems to me that whenever an agency declares a group eligible for some pre-existing benefit, it’s the eligibility determination (through rulemaking, interpretive rule, or, as here, through a statement of policy) that confers the benefit on that group—no?

I’ll report on the states’ reply when it becomes available.