Monday, November 30, 2015

On-Line Symposium on Texas v. United States: Ming Hsu Chen, Beyond Legality

Over the last couple of weeks, the ImmigrationProf blog has been posting contributions comprising an on-line symposium on the U.S. Court of Appeals decision in Texas v. United StatesHere is a compilation of the contributions to date.  The latest installment is below.


Beyond Legality[1]

Blog post by Ming Hsu Chen for ImmprofBlog Symposium on Texas v. United States

              One thing to not lose sight of in the excitement over the Texas v. United States appeal to the Supreme Court. Executive action in immigration law will persist, regardless of whether President Obama’s deferred action programs are eventually ruled lawful by the Supreme Court and even if Congress or the next presidential administration acts to roll back the programs. In a full length article on DACA and DAPA, I urge a focus on legitimacy rather than unremitting concern for legality. While challenges to the legality of Obama’s executive actions in immigration law proceed in court, the Article presents evidence that states generally deem federal policy legitimate when they voluntarily enact state policies that incorporate DACA lawful presence designations, even though Texas v. United States paints a portrait of vehement skepticism of DAPA. If experience holds, it will take a lot to overcome states’ willingness to cooperate with the DACA and DAPA executive actions once given the opportunity.

              So far we know that the general trend of state support for DACA is enduring. Fifty of fifty states offer driver's licenses to DACA recipients, notwithstanding Texas' contention that driver's licenses impose unwelcome costs on the state. Empirical evidence of the diffusion of state driver's license policies shows that the adoption is neither uniform nor monolithic: despite the seeming consensus, the state policies providing driver’s licenses to DACA recipients vary over a spectrum of attitudes and cooperative behaviors. While some states eagerly embrace DACA’s lawful presence designation, others accept it provisionally and some begrudgingly, only under the threat of legal sanction. But the trend is toward embracing DACA in state policies. Versions of the same incorporationalist trend arise from studies of state higher education policies. A study of health care shows the limits of state acceptance, with only a handful of states finding ways to enact inclusionary policies for DACA recipients under the ACA’s legal constraints. Yet across the policy arenas, in-depth case studies reveal that cooperative policymaking is a dynamic process motivated by a sense of DACA as being legitimate despite contention about legality, morality, and politics.

              The Texas challenge to DAPA does not by itself change the analysis suggested by on-the-ground experience. Texas v. United States amplifies the complicated relationship between legitimacy and legality. It does so by raising a critical test case involving more legal contestation and stronger policy objection, where legality abuts legitimacy. States are tasked with sorting out their perceptions of the continuing legitimacy of the program in the face of legal contestation. Similarly, the policy design decisions surrounding DAPA’s more expansive contemplated alternative (deferred action for parents of DACA recipients, beyond parents of U.S. citizens and LPRs) illustrates that policy, politics, and legitimacy are also related. Still, the paramount importance of legitimacy remains for these programs of executive action—especially if they rely on a scheme of cooperative policymaking that involves voluntary state cooperation—unless and until the legal dispute becomes grave enough to overcome the presumption of institutional legitimacy.

              Once the dust settles on the legality of the newly-created DAPA program, a few outcomes are possible: (1) DAPA is found legal, and states cooperate with its implementation because it is legitimate; (2) DAPA is found legal, and states choose not to cooperate once it is implemented because it is not legitimate; (3) DAPA is found illegal for curable reasons such as an APA procedural violation, and states cooperate because they believe the program remains legitimate once these defects are cured; or (4) DAPA is found illegal for curable reasons such as an APA procedural violation, and states choose not to cooperate even once the defects are cured. States might also follow the law involuntarily, as did Arizona, following the federal court’s insistence after Arizona DREAM Act Coalition v. Brewer. Of course, if DAPA is found illegal on constitutional grounds or for reasons that provoke grave doubt over its procedural fairness, states will lack the opportunity to cooperate since DAPA will not go into effect. Based on legitimacy research and this study of state cooperation, my article finds the cooperative outcomes more likely than their non-cooperative counterparts.

Outcomes following DAPA litigation



Not Legitimate


State Cooperative

States Not Cooperative

Not Legal

State Cooperative (if curable)

States Not Cooperative (if curable)

              However, state cooperation is not assured even if the DAPA program is found lawful and permitted to be implemented. State decisions will turn on their attitudes toward the legal authorities granting recognition to deferred action recipients and administering the applications. Those seeking to preserve the executive action must build public support for their policy to survive on-the-ground. It might not be necessary to roll back DAPA to preserve DACA in the states (as a matter of voluntary cooperation), but it might be necessary to change the implementation procedures to demonstrate procedural legitimacy even if not legally required to do so. Some ideas to shore up legitimacy after the shake-up of litigation include gathering community input, following APA rulemaking procedures, enforcing the high priority categories for removal, or publicizing discretionary departures from the guidance criteria and other sincere efforts to enforce immigration law. A symbolic but potentially significant move that would parallel Obama’s efforts to build legitimacy for Secure Communities might be to revise the parameters or replace the underlying program under the banner of a new name—for example, by revisiting and clarifying the benefits associated with DAPA. These research-backed proposals reflect that, beyond eliciting legal compliance, the President should set his sights high by cultivating voluntary cooperation with his executive actions. He should do so in the places that trust him least and even if it is not legally required.

              The President’s initial reticence about moving forward with executive action and his continuing exhortation for Congress to take the next step by enacting comprehensive legislation that promotes legalization and ameliorates the longstanding undocumented population—even as he consistently asserts the legality of his executive actions in court—reveals his keen understanding of the vulnerability of relying on executive action. Executive action is quick to enact; it is also quick to undo or alter and vulnerable to challenge. For all of these reasons, executive action is a second- or third-best means for crafting immigration law—second to Congress, and third to notice and comment rulemaking. Still, executive action is a viable means of advancing policy and it can be an effective one, provided that it can obtain on-the-ground acceptance of its legitimacy and voluntary cooperation


[1] This post is excerpted from Ming H. Chen, Beyond Legality: Understanding the Legitimacy of Executive Action in Immigration Law, 66 Syracuse L. Rev. (forthcoming 2016).


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