Friday, November 13, 2015

On-Line Symposium on Texas v. United States: Commentary of Peter Margulies


This is the latest installment of the ImmigrationProf blog on-line symposium on the Fifth Circuit's ruling on Monday in Texas v. United States, which enjoined the Obama administration's expanded deferred action program.  The author is Professor Peter S. Margulies, Roger Williams University School of Law.

The Fifth Circuit’s decision in United States v. Texas promotes fidelity to the Immigration and Nationality Act (INA) and deliberation among stakeholders in the formulation of immigration policy – virtues that any account of the rule of law should celebrate. DAPA, as Judge Jerry Smith found, is an “elephant in a mousehole” (p. 61 n. 186) – a unilateral re-set of the INA’s logic, structure, and purpose based on generic provisions that Congress never intended to bear that kind of weight. (See the Cato Institute amicus I co-authored with Josh Blackman and my Am. U.L. Rev. article here.) Deference under the Administrative Procedure Act (APA) has never encompassed such a cavalier approach. Moreover, the substantial change in the INA’s operation that DAPA entails cries out for the careful deliberation among stakeholders entailed by the APA’s rule-making process. The Fifth Circuit rightly resisted the fleeting allure of ersatz immigration reform that DAPA represents. The court’s decision therefore confronts the Administration, lawmakers, and the public with a salutary challenge: enact lasting immigration reform the old-fashioned way – through Congress.

The heart of Judge Smith’s substantive APA discussion (p. 54, accompanying n. 161 in the slip opinion), describes the INA’s carefully crafted framework of deterrence. As the Supreme Court held in FDA v. Brown & Williamson, an administrative policy is unworthy of deference if it defies clear statutory commands, and courts discern statutory clarity not merely through statutory text, but also through statutory “context.” As Judge Smith makes clear, the deterrence of unlawful migration that permeates the INA’s context clashes with DAPA’s conferral of benefits on the very group that the INA seeks to deter.

DAPA’s most salient conflict with statutory context is its promotion of U.S. jobs for a large fraction of the undocumented population. As Judge Smith notes at p. 58 (text adjoining n. 172), the Supreme Court has found that Congress “made combating the employment of illegal aliens central to ‘[t]he policy of immigration law’” through the imposition of employer sanctions. Employer sanctions were the key to passage of the 1986 Immigration Reform and Control Act (IRCA): IRCA was a compromise designed to both “reform” and “control” migration to the United States. In enacting IRCA, Congress reformed the system by granting permanent legal status to over a million undocumented noncitizens. IRCA also aimed to control future unlawful migration by neutralizing the “magnet” of U.S. jobs through employer sanctions.

The economic forces impelling unlawful migration have proved to be too formidable for employer sanctions to counter. However, this is a problem of immigration policy, not a justification for unilateral rewriting of immigration law. As Judge Smith explains, DAPA’s facilitation of employment authorization (EAD) for 4.3 million unlawful migrants (almost 40% of the United States’ current undocumented population) is flatly inconsistent with Congress’s persistent efforts to turn off the “magnet” of U.S. jobs for undocumented persons. (Judge Smith rightly found that DAPA’s facilitation of prized benefits such as EADs for 4.3 million undocumented persons makes DAPA an example of agency action that courts typically review, not a one-off example of agency inaction that is presumptively unreviewable under the Supreme Court’s 1985 decision in Heckler v. Chaney).

Judge Smith also rightly rejects the Administration’s argument that the INA’s generic provisions permit immigration officials to toss DAPA’s massive monkey-wrench into the statutory framework. For example, 8 U.S.C. § 1324a(h)(3) does not authorize blanket grants of work authorization, as the Administration (and Judge Carolyn Dineen King’s dissent) claims; this modest subsection merely informs employers that they have a safe harbor to avoid sanctions if they hire noncitizens with valid EADs. Similarly, 6 U.S.C. § 202(5) gives the Secretary of Homeland Security (DHS) power to “establish[] national immigration enforcement policies and priorities.” However, that subsection must be read in tandem with subsection 4 of the same provision, which requires DHS to fulfill the “immigration enforcement functions vested by statute” in immigration officials. DHS must reconcile its enforcement practices with statutory norms; it has no warrant to rewrite those norms in the service of a policy that doesn’t fit the statute’s context.

Judge Smith’s emphasis on statutory context also flags the flaw in the government’s argument (and Judge King’s dissent) that DAPA does not provide EADs, but merely allows recipients to apply for EADs pursuant to other statutory or regulatory authority. This argument obscures the crucial substantive APA question: how DAPA fares against the backdrop of the INA, read in context under the Supreme Court’s decisions regarding step 1 of the Chevron test for deference to agencies. If “common sense” demonstrates (Brown & Williamson) that Congress could not have intended that 40% of undocumented migrants receive EAD, DAPA exceeds the authority that DAPA delegates to immigration officials.

That contextual inquiry does not hinge on whether DAPA grants EADs automatically or allows recipients to apply separately. As long as a substantial number of the projected 4 million-plus DAPA recipients would receive EADs as a result of DAPA grants, DAPA is inconsistent with the INA, when the latter is viewed in context. Statistics compiled by the indefatigably resourceful Shoba Wadhia show that the government typically approves at least 86% of EAD applications from deferred action recipients. If DAPA’s potential pool of recipients numbers 4.2 million undocumented persons, Professor Wadhia’s 86% translates into over 3.5 million EADs.

This vast number is consistent with the message sent by DHS Secretary Jeh Johnson’s memo (p. 3) on prosecutorial discretion announcing DAPA, which accurately described prospective DAPA recipients as “hard-working people” whom DHS wished to “encourage” to apply for EADs. This official encouragement would take a cruelly Kafkaesque turn if DHS denied a substantial number of EAD applications from DAPA recipients. That reality brings us back to the contextual question with which we started: would Congress, which gave a central role in the INA to turning off the “magnet” of U.S. jobs, wish to provide work authorization to almost 40% of the undocumented population? Anyone who answers, “Yes,” should also get ready to offer home and hearth for a chance to buy the Brooklyn Bridge.

Speaking of bridges, the Fifth Circuit deploys this metaphor to describe previous uses of deferred action. As Judge Smith observes on pp. 63-64 (see also Josh Blackman’s Georgetown on-line piece here) most previous uses of deferred action have been short-term bridges to a legal status that was already available to the noncitizen. Judge Smith aptly describes the Bush I Family Fairness program, which Mark Noferi has sought to re-brand as a precursor to DAPA, as an “interstitial” program that granted a reprieve from removal to spouses and minor children of IRCA grantees. Family Fairness recipients, as the spouses and children of individuals who would shortly receive lawful permanent resident status, were in line to receive visas within 3-5 years. In contrast, as Judge Smith recounts at p. 56 of his opinion (text adjoining n. 167), Congress has deliberately erected a daunting obstacle course for undocumented parents of post-entry U.S. citizen children, based on concerns articulated by Senator Robert Kennedy during the drafting of the 1965 Immigration Act.

Both Bobby Kennedy, who had just stepped down as Attorney General, and Senator Sam Ervin of North Carolina, who would later chair the Senate Watergate Committee, worried that undocumented persons might seek to have children in the U.S. to improve their own immigration prospects. The INA seeks to derail that strategy, by mandating that a U.S. citizen child sponsoring a parent must be at least 21 years of age and an undocumented parent must leave the country to obtain a visa. At that point, a parent who has already been unlawfully present in the U.S. for over a year (like virtually all prospective DAPA beneficiaries) is subject to a ten-year bar on admission to the United States. In other words, rather than the 3-5 years that a Family Fairness recipient had to wait for a legal status, a prospective DAPA recipient’s wait will often be at least twenty, and sometimes thirty, years. No short-term bridge can span that abyss, which Congress deliberately built into the legal landscape confronting DAPA recipients to deter the very conduct that DAPA rewards.

The Fifth Circuit was also right that DAPA is a “substantive rule” that requires notice and comment procedures. Congress required such procedures under the APA because it believed that input from a spectrum of stakeholders would improve regulatory outputs. That range of inputs can improve agency deliberation, focusing the agency’s attention on matters it may have unduly discounted or even ignored. A process that enhances immigration benefits such as work authorization for almost 40% of undocumented immigrants has the pervasive substantive impact that courts view as requiring rulemaking.

If the grant of such benefits was purely a matter of individual officials’ judgment of the equities, courts might view the grant as a discretionary determination that did not create a binding rule requiring notice and comment. While both DAPA and its predecessor, Deferred Action for Childhood Arrivals (DACA), talk the talk of discretion, they fail to walk the walk. The government’s own web site and court submissions indicate that DACA applications were approved in overwhelming numbers, with requests for evidence issued only on ministerial matters such as DACA’s temporal criteria (i.e., officials would seek rent receipts to prove an applicant had resided continually in the United States). (Record on Appeal, pp. 4162, 4187). Immigration officials did not exercise substantive discretion beyond these ministerial issues or an applicant’s criminal record. Indeed, after DAPA was announced in November, 2014, immigration officials approved 100,000 DACA renewals in eleven weeks – a bureaucratic juggernaut that conjures up images of checking boxes, not judicious weighing of the equities. (This haste also violated the district court’s injunction, leading to rescinding of the renewals.)

Similarly, the government’s court filings and its own statistical report to Congress indicate that a DACA grant was ironclad insurance against removal – out of 591,555 DACA grants, there have been only 113 subsequent DACA terminations – a rate of approximately 1 in 5,000. (Record, p. 2225). While the government (and Judge King’s dissent) assert that deferred action can be revoked at any time, the law in action belies the law on the books. Based on the government’s own statistics, a DACA grant is effective protection against removal in 99.98% of the relevant cases. That lopsided figure demonstrates the evisceration of enforcement that DAPA will engender – a practical consequence that courts, such as the D.C. Circuit in Appalachian Power Co. v. EPA (2000) cite as evidence of a “binding” rule that requires the deliberation furnished by the rulemaking process.

In conclusion, the Fifth Circuit’s ruling champions virtues that are worthy of universal respect: placing fidelity to Congress and solicitude for stakeholder deliberation above administrative fiat. These virtues will not resolve the humanitarian problem created by the lack of legal status for the United States’ undocumented population. Indeed, given the current political climate, in which even Senator (and presidential candidate) Marco Rubio’s equivocal gestures toward immigration reform have provoked anger within a segment of the U.S. electorate, solutions seem far away. However, building an effective movement for reform will require that we display both patience and deliberation. DAPA is a distraction from that goal. A Supreme Court affirmance of the Fifth Circuit’s well-reasoned decision will return our eyes to the legislative arena – the appropriate site for lasting reform in a constitutional republic.


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