August 23, 2012
ICE Officers Sue to Halt DHS Deferred Action
A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens. (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.) The administration has argued that the program is a valid exercise of prosecutorial discretion. We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).
It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government. The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution. It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them. There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations.
The officers state five causes of action. First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted." Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law. Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'" Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress. Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.
Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future. But maybe it's not supposed to. The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.
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