Tuesday, May 26, 2015
The Order enjoining the Obama administration from implementing DAPA (granting temporary legalized status to as many as 4.3 million persons residing in the United States without authorization) will remain in force until after the 5th Circuit Court of Appeals has a chance to decide the merits of the case.
After President Obama announced a program (DAPA) "[a]llowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years ... provided they have lived in the United States continuously since January 1, 2010, and pass required background checks." If implemented, this action would grant temporary legal status to up to 4.3 persons residing in the United States without legal authorization. Texas and 25 other states sued in U.S. District Court in Texas to set aside the administration's action on the grounds that a) the administration failed to follow the rulemaking procedures set out on the Administrative Procedures Act (the APA) and that the President had violated the separation of powers by usurpsing Congress' legislative authority.
The Disctrict Court enjoined implementation of the program and held that the Obama administration had violated the APA. It did not rule on the constitutional grounds, but it was pretty clear from the Court's ruling that if forced to reach the constitutional issues, it would conclude that the administration had acted unconstitutionally.
Today the 5th Circuit denied the Obama administration's request to lift the stay. It will hear the merits of the administration's appeal in July, but its opinion today gives us clues to how it will approach the merits. The administration should not be encouraged. Here are a few snippets:
Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low-priority aliens. If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.
“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’”Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.
[N]or does deferred action pursuant to DAPA mean merely that “no action will thereafter be taken to proceed against an apparently deportable alien.” Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,” a change in designation that confers eligibility for federal and state benefits on a class of aliens who would not otherwise qualify.
[W]e would expect to find an explicit delegation of authority to implement DAPA—a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.
The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion,”and there was evidence that the DACA application process itself did not allow for discretion, regardless of the approval rate.
DAPA modifies substantive rights and interests—conferring lawful presence on 500,000 illegal aliens in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and changing its law.