Washington Post (Volokh Conspiracy)
By Jonathan Adler
November 10, 2015
A
divided panel of the U.S. Court of Appeals for the Fifth Circuit has
affirmed a federal district court’s nationwide injunction against the
Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)
program in Texas v. United States. Twenty-six states filed suit against
the program on both procedural and substantive grounds. The Fifth
Circuit’s decision yesterday increases the likelihood
that the lawfulness of DAPA will be resolved by the U.S. Supreme Court,
perhaps even as early as next spring (depending on how the
Administration responds to the ruling).
In
an extensive, 70-page ruling, Judge Jerry Smith (joined by Judge
Jennifer Elrod) concluded that the states had standing to challenge DAPA and were likely to succeed
on both their procedural and substantive claims. Among other things,
Judge Smith concluded that DAPA is not authorized under existing law,
nor is it justified by historical practice. In reaching this conclusion,
Judge Smith cites King v. Burwell, among other
recent Supreme Court decisions.
From the majority opinion:
DAPA would make 4.3 million otherwise removable aliens eligible for lawful
presence, employment authorization, and associated benefits, and “we
must be guided to a degree
by common sense as to the manner in which Congress is likely to
delegate a policy decision of such economic and political magnitude to
an administrative agency.” DAPA undoubtedly implicates “question[s] of
deep ‘economic and political significance’ that [are]
central to this statutory scheme; had Congress wished to assign that
decision to an agency, it surely would have done so expressly.” [FN:
King v. Burwell] But assuming arguendo that Chevron applies and that
Congress has not directly addressed the precise question
at hand, we would still strike down DAPA as an unreasonable
interpretation that is “manifestly contrary” to the INA. . . .
The
interpretation of those provisions that the Secretary advances would
allow him to grant lawful presence and work authorization to any illegal
alien in the United States—an
untenable position in light of the INA’s intricate system of
immigration classifications and employment eligibility. Even
with“special deference” to the Secretary, the INA flatly does not permit
the reclassification of millions of illegal aliens as lawfully
present and thereby make them newly eligible for a host of federal and
state benefits, including work authorization.
Presumably
because DAPA is not authorized by statute, the United States posits
that its authority is grounded in historical practice, but that “does
not, by itself, create
power,” and in any event, previous deferred-action programs are not
analogous to DAPA. “[M]ost . . . discretionary deferrals have been done
on a country-specific basis, usually in response to war, civil unrest,
or natural disasters,” but DAPA is not such a
program. Likewise, many of the previous programs were bridges from one
legal status to another, whereas DAPA awards lawful presence to persons
who have never had a legal status and may never receive one. . . .
Historical
practice that is so far afield from the challenged program sheds no
light on the Secretary’s authority to implement DAPA. Indeed, as the
district court recognized,
the President explicitly stated that “it was the failure of Congress to
enact such a program that prompted him . . . to ‘change the law.’” At
oral argument, and despite being given several opportunities, the
attorney for the United States was unable to reconcile
that remark with the position that the government now takes. And the
dissent attempts to avoid the impact of the President’s statement by
accusing the district court and this panel majority of “relying . . . on
selected excerpts of the President’s public statements.”
. . .
Through
the INA’s specific and intricate provisions, “Congress has ‘directly
addressed the precise question at issue.’” As we have indicated, the INA
prescribes how parents
may derive an immigration classification on the basis of their child’s
status and which classes of aliens can achieve deferred action and
eligibility for work authorization. DAPA is foreclosed by Congress’s
careful plan; the program is “manifestly contrary
to the statute” and therefore was properly enjoined.
Judge
Carolyn King authored a fifty-plus page dissent. Of note, Judge Smith
refers to Judge King’s opinion as “a careful dissent, with which we
largely but respectfully
disagree. It is well-researched, however, and bears a careful read.” It
is rare, yet refreshing, to see such a statement in an opinion.
An early Associated Press story on the decision can be found here. The Post‘s early coverage is here.
For more information, go to: www.beverlyhillsimmigrationlaw.com
No comments:
Post a Comment