January 20, 2016

United States v. Texas: Mountain or Molehill?

Cross-posted from ACSblog.

The Supreme Court granted certiorari this week in United States v. Texas; the case will undoubtedly be one of the term’s most interesting, important, or both. In a 2-1 decision, the Fifth Circuit invalidated the Obama Administration’s DAPA program making “deferred action” available to as many as four million unauthorized migrants who are parents of U.S. citizens or green card holders. Deferred action represents a formal decision by the government to exercise prosecutorial discretion not to initiate deportation proceedings; it creates neither a right to remain nor a path to permanent status. However, by regulation, the government may grant work authorization to holders of deferred action.

The Court will review several critical questions.

The merits issues are whether the administration had the power to establish the program, and if it did, whether it should have gone through formal notice and comment under the Administrative Procedure Act. As Congress does not appropriate enough money to completely enforce the immigration laws (or any other laws, for that matter) there is no question that prosecutorial discretion, for better or for worse, is inevitable. There is also little doubt that even in the government, bosses are allowed to give direction to subordinates about how programs are to be carried out.

The line between permissible “guidance” and formal, binding enforcement rules requiring notice and comment is debated by the parties. But given that the program does not purport to give noncitizens enforceable rights to relief and allows for case by case, discretionary evaluation of applications in the field, there is a strong reason to believe that the program constitutes permissible enforcement guidance. Certainly it is hard to dispute the idea that, in principle, discretion should be exercised consistently, transparently, and based on reasons rather than at the whims of individual officers in the field. I consider it unlikely that a majority of the Court will rule that general, non-binding guidance of this sort is impermissible.

However, the Court may well not reach the merits. Texas claims standing to sue on the ground that it chooses to offer non-citizens with deferred action discounted driver’s licenses, and creating more people with deferred action will likely result in more people seeking the discount. This self-created, de minimis harm is a thin reed for standing. It is particularly interesting because the Court sua sponte directed the parties to brief the question of whether the administration’s policy implicated the president’s obligation to take care that the laws be faithfully executed.

This case shows that states are often deeply concerned about federal law enforcement or lack thereof; 40-some states joined briefs supporting or opposing cert. I’m going to go out on a limb and predict that the Court will not rule both that states have standing on the ground that different federal enforcement policies would reduce their costs, and that states have the right to insist that the president enforce their preferred laws. If the Court did, we (and the Court) would witness an unprecedented blizzard of litigation.

Kevin R. Johnson has written about the politics of the case here.