By Herman Schwartz
April 19, 2016
Throughout the United States, millions of undocumented immigrants with American children live in fear of being deported — despite a federal program that could shield them. This danger has been present since February 2015, when a federal district court judge in a small Texas town ruled that the Obama administration’s protective program, the Deferred Action for Parents of American Citizens and Lawful Permanent Residents, or DAPA, could not prevent deportation anywhere in the nation. Six months later, the Fifth Circuit Court of Appeals affirmed that decision 2-1.
The Texas case, "Texas v U.S.A." which the U.S. Supreme Court heard this morning, is one of the many that might be left undecided because of the sudden death of Supreme Court Justice Antonin Scalia. The sharp divisions among the justices make it likely that some cases will end in a 4-4 decision, which would leave the lower court rulings in effect. If that happens with "Texas v. U.S.A" — and the oral arguments Monday morning suggested it might – the Texas court’s decision could remain in effect indefinitely.
There was no solid reason, however, for a nation-wide order in this case. Federal circuit-court decisions are usually binding only in the states within the circuit. The Department of Homeland Security did not have to accept what it — and many others — consider an erroneous ruling. The agency could, and should, have gone ahead with the deferred-deportation program outside the three Southern states — Texas, Louisiana and Mississippi – that make up the Fifth Circuit, by relying on a long tradition of agency non-acquiescence to judicial rulings an agency considers erroneous.
In fact, Homeland Security had good reason to limit the Texas rulings to the Fifth Circuit. More than 100 immigration experts have called the decisions “deeply flawed,” because the judges misunderstood, misinterpreted and were confused about the immigration laws. Moreover, the decision violates basic principles of law and of judicial decision-making.
One constitutional requirement for bringing a federal suit is that the plaintiffs have “standing” — that he or she can prove the defendant (in this case, the United States, because of the Obama administration’s executive action) inflicted a specific injury on them. Concrete evidence of the injury must be submitted to the court.
Yet, as the district judge conceded in his decision, the only state that even offered such evidence was Texas. So no other state should have been allowed to sue — Texas’ standing cannot also cover the other states.
Another equally fundamental principle is that an injunction, particularly against the government, should be as narrowly construed as possible. It must be limited to what is strictly necessary to provide full relief from the claimed injury — and nothing more.
This is not to say that the district and circuit judges can never have the authority to issue a nation-wide injunction against a federal official. Nationwide orders are sometimes necessary. But not here.
This latest phase of the immigration wars began on Nov. 20, 2014. Invoking the executive branch’s near-absolute discretion over deportation, Homeland Security Secretary Jeh C. Johnson established DAPA. The program would have deferred for three years the deportation of roughly 3.6 million undocumented immigrant parents of U.S. citizens and lawful permanent residents — if the parents had lived in the United States for at least five years and been law-abiding. Instead the department could concentrate its limited resources on criminals and threats to national security.
By avoiding the break-up of families, many of which had young children, the deferral program would have promoted values that underlie much of immigration law.
The deferred-deportation program, which has solid public support — even overwhelming according to some polls – would have allowed these immigrants to come out of the shadows, legally able to work and drive. Their jobs would have produced substantial new tax revenues for the states and the federal government.
Despite this, the state of Texas promptly filed suit in Brownsville, where District Judge Andrew S. Hanen, known for his open hostility to the president’s immigration policies, is the senior active judge. On Feb. 16, 2015, Hanen ruled that Homeland Security’s adoption of the program violated the Administrative Procedure Act, and ordered the department not to implement DAPA anywhere in country. The Fifth Circuit upheld his ruling. The two conservative judges in the 2-1 ruling went beyond the district court’s decision to rule that the president and Homeland Security had no legal authority to adopt DAPA. Linda Greenhouse, the longtime Supreme Court reporter for the "New York Times" has described the Fifth Circuit as “antediluvian.”
The Homeland Security Department, 15 states and cities, as well as the District of Columbia, all asked both the trial and appellate courts to limit their ruling to their respective jurisdictions, or even to just the 26 state plaintiffs. Both courts refused.
The decision has been devastating for the eligible undocumented immigrants, 85 percent of whose children are citizens, and their families — a total of 10 million people, including some 4.3 million children under 18.
Meanwhile, the states that oppose the decision are losing millions of dollars in tax and other revenues that they had expected from the improved employment opportunities. California, for example, estimated that more than 1.2 million people would have been eligible for the program, which would have boosted tax revenues more than $900 million over five years. Even Texas, with possibly 600,000 people eligible, would have taken in an estimated $338 million more in state tax revenue over the next five years — far more than the cost of its alleged injury from the deferral program.
Had the Department of Homeland Security ignored the Fifth Circuit Court’s injunction beyond its three states, it would not have done anything illegal or even unprecedented. For at least 90 years, the National Labor Relations Board, the Internal Revenue Service and the Immigration and Naturalization Service, the predecessor of Homeland Security, have all “non-acquiesced” in decisions they strongly disagreed with. They followed the rulings only in the states of the circuit that decided the case.
Although some lower court judges have been unhappy about this, it has continued without check by either Congress or the Supreme Court, and has been approved by distinguished scholars.
Without explicitly discussing agency non-acquiescence, the Supreme Court has provided many reasons for the practice. The most important is, as Chief Justice William H. Rehnquist emphasized, “the government is not in a position identical to that of a private litigant.” Government cases often involve important constitutional or statutory issues such as separation of powers, and federalism. These cases need to be argued over by different judges and lawyers to illuminate the issues for the Supreme Court to resolve. If Homeland Security had non-acquiesced in "Texas v U.S. A.," other suits would have been filed.
This inter-circuit dialogue is one of the most important by-products of the multi-circuit appellate system. Making the first trial or appellate court decision binding on the entire government frustrates this process.
Another critical consideration is that, unlike most private litigants, federal officials can be legally present everywhere. This makes it easy for lawyers to shop for a favorable judge when they want to challenge a nation-wide policy — which happened in this case.
Democrats are urging Republican senators to “Do your job” and hold hearings on Judge Merrick Garland’s nomination to the Supreme Court. In this case, the Homeland Security secretary should have done his.
For more information, go to: www.beverlyhillsimmigrationlaw.com