Curb Your Enthusiasm for Immigration Decision

 

Opponents of President Obama’s immigration policy may want to temper their praise of federal Judge Andrew Hanen’s decision this week, which blocked the administration’s unilateral policy of refusing to pursue the deportation of millions of illegal aliens. Unfortunately, I think it is likely that an appeals court will reverse Judge Hanen’s decision because it tried — too cleverly — to avoid the fundamental issue of the President’s duty to enforce the law by relying instead on a technical aspect of the law governing administrative agencies. But when the case returns to the trial court, the judge will have to face the critical conflict between the Obama policy and the executive’s constitutional duty to “take Care that the Laws be faithfully executed.”

Judge Hanen, who sits in Brownsville, Texas, issued a 123-page opinion explaining why Texas and 25 other states had the right to challenge the Department of Homeland Security. That part of the decision, which showed why the states were harmed by the federal policy, and so had “standing” to sue in federal court, is likely to be upheld on appeal. As I’ve argued before, the same logic that allowed Massachusetts to sue the EPA for failing to regulate greenhouse gases — on the speculative possibility that gases would lead to global warming, which would lead to rising seas, which would reduce the land mass of the state — would more powerfully support states who had to provide services to illegal aliens allowed to remain in the United States by the Obama Administration. Judge Hanen pointed out that Texas would suffer a sufficient harm to sue because it would have to bear expenses to provide illegal aliens with driver’s licenses. Hanen’s opinion straightforwardly rebuts the weak claims of Obama supporters who believed that states had no right to sue in court.

The second part of the opinion, however, which found the states likely to prevail on the merits, is likely to be reversed. Here, I’m afraid Judge Hanen decided the case on the wrong grounds. He found that the Obama Administration had violated the Administrative Procedure Act for failing to give the public notice and an opportunity to comment on its new policy on enforcement of the immigration laws. The court did not reach the constitutional issue: whether a President can refuse to enforce federal law, not because it violates the higher law of the Constitution, but because he disagrees with Congress’s policy choices.

Unfortunately, I think that Judge Hanen may well be reversed on appeal. The conclusion that the Obama Administration should have complied with the APA is doubtful in my view. It did not issue a new regulation, which would trigger the APA process of notice and comment rulemaking, nor would it normally have. If the Justice Department, for example, were to follow a policy of not prosecuting violators of federal criminal law who did not cause any physical harm or significant financial damage in the course of their crimes, the APA should not apply.  Such decisions fall under the scope of prosecutorial discretion which the Supreme Court, in Heckler v. Chaney, recognized as not subject to judicial review.  The executive branch agencies must follow the APA when they issue regulations on pollution, for example, or workplace standards. But they do not generally have to follow administrative rulemaking procedures when they refrain from using their law enforcement powers (which, after all, expand individual liberty by freeing people from government coercion).

I can understand why Judge Hanen took this course: because he did not want to reach a difficult constitutional issue on which we have almost no Supreme Court precedent. Nevertheless, he — and the federal courts — will have to. If the appeals courts reverse and find that the APA does not cover cases of prosecutorial discretion, as I think it will, then the remaining ground will still be the claim that President Obama has violated Article II of the Constitution by failing to execute the laws validly passed by Congress. This is the fundamental issue and it is, in the end, the reason to oppose President Obama’s unilateral immigration policy. Even though I would like to see immigration reform that significantly expands the number of aliens allowed to remain in the United States (and changes the grounds on which they are admitted), I cannot agree with the way President Obama set the policy.

As long interpreted, the Constitution gives the immigration power to Congress and it does not allow the President to pick and choose which laws he likes to enforce. The only time that a President can categorically refuse to enforce a law in such a broad class of cases (here, perhaps as many of 4.5 million out of the estimated 12 million illegal aliens in the U.S.) is if the law itself violates the Constitution. Otherwise, the President can only choose to refrain in a case-by-case use of prosecutorial discretion that prioritizes based on limited federal resources.

Here, as Judge Hanen’s opinion made clear, the past Obama immigration order on the so-called DREAMers granted relief from deportation in close to 100 percent of all the cases. The Constitution prevents the President from canceling a law simply because his views lost out in the legislative process; the Framers included the Take Care clause precisely to prevent such a result. Judge Hanen’s opinion, while a good start on standing, still requires the federal courts to stand up for this fundamental constitutional principle.

 

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  1. BuckeyeSam Inactive
    BuckeyeSam
    @BuckeyeSam

    I’m jonesing for a Law Talk episode. I’d love an analysis of this case from the Ricochet Faculty Lounge.

    Two questions.

    First, my impression is that the judge paid particular attention to all the affirmative actions that Obama’s 2014 DAPA took–extending benefits well beyond refusing to prosecute. I don’t see where the post addresses that point.

    Second, and after the fact, I suppose, why didn’t some or all of these AGs sue along similar lines to object to Obama’s 2012 DACA? It seems to me that benefits–in addition to not deporting–were extended under that executive action. Even if they didn’t want to mucky the waters, why not take up a separate action?

    • #1
  2. BuckeyeSam Inactive
    BuckeyeSam
    @BuckeyeSam

    FWIW: I saw Mark Krikorian mention this hour-long segment on C-SPAN this morning in the Twitter feed.

    http://www.c-span.org/video/?324339-4/washington-journal-jon-feere-crystal-williams-president-obamas-immigration-plan

    It’s a segment matching a lawyer from the “nonpartisan” (yeah, right) American Immigration Lawyers Association and a guy from Krikorian’s CIS. Apparently, the lawyer took time off from sitting at home with her five cats to do the segment–you’ll see why I say so almost immediately. If you can’t watch it now, save it some place for a rainy day laugh. You have to see her face when some of the callers call in to ream her on illegal immigration–one black GOP from Miami, Florida, especially. At times, it’s like watching an SNL skit. The lawyer is classic hard-left, economic lunacy trying to pass herself as reasonable moderate on the right side of history.

    If every American could watch this segment, amnesty shills in Congress would be tarred and feathered within a week.

    • #2
  3. Ricochet Member
    Ricochet
    @ArizonaPatriot

    Perhaps things aren’t as bleak as Prof. Yoo indicates.  My first impression is that on appeal, the states will be able to rely on two favorable legal principles:

    (1)  the preliminary injunction can be affirmed on alternative grounds (the constitutional argument) even if the basis for the District Court’s decision is erroneous; and

    (2)  the grant of a preliminary injunction is reviewed for abuse of discretion (as to the District Court’s factual findings).

    What I don’t know, without reading the full 123-page opinion, is whether the District Court made factual findings that would help support the constitutional argument.  In any event, it seems to me that the 5th Cir. panel reviewing the decision will be able to consider the constitutional argument, though I expect that the panel will also have discretion to “punt” on the constitutional issue and remand the case to give the District Court a chance to rule on it.  Which they choose will probably be a function of: (1) the outlook of the particular 5th Cir. panel assigned the case, (2) the extent of the District Court’s applicable factual findings, and (3) the extent of the undisputed facts relevant to the constitutional argument.

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  4. NormD Member
    NormD
    @NormD

    I understand how prosecutorial discretion could allow for not enforcing some laws, but how does it allow issuing work permits, SSNs (and benefits) and driver’s licenses?

    • #4
  5. Ricochet Member
    Ricochet
    @

    BuckeyeSam:FWIW: I saw Mark Krikorian mention this hour-long segment on C-SPAN this morning in the Twitter feed.

    http://www.c-span.org/video/?324339-4/washington-journal-jon-feere-crystal-williams-president-obamas-immigration-plan

    It’s a segment matching a lawyer from the “nonpartisan” (yeah, right) American Immigration Lawyers Association and a guy from Krikorian’s CIS. Apparently, the lawyer took time off from sitting at home with her five cats to do the segment–you’ll see why I say so almost immediately. If you can’t watch it now, save it some place for a rainy day laugh. You have to see her face when some of the callers call in to ream her on illegal immigration–one black GOP from Miami, Florida, especially. At times, it’s like watching an SNL skit. The lawyer is classic hard-left, economic lunacy trying to pass herself as reasonable moderate on the right side of history.

    If every American could watch this segment, amnesty shills in Congress would be tarred and feathered within a week.

    The most shocking part for me was when she said she didn’t have any children.

    Seriously, she might as well be a spokesperson for the Obama administration. Her responses were filled with platitudes and faux outrage. The notion that blacks have many low-skilled jobs is “offensive” to her? My goodness, what a joke this woman is.

    • #5
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