You may have heard that a group of states, as well as Sheriff Arpaio of Maricopa County, Arizona, filed lawsuits against the White House seeking injunctions of parts of the Executive Actions announced by President Obama on November 20, 2014. At Saev Hernandez Immigration Practice, we have heard from a number of clients and community members asking how serious a threat these lawsuits pose to Executive Action.
We believe that the President is well within his authority to establish enforcement priorities and that deferred action will be upheld. Legal scholars agree that President Obama is well within his presidential powers to decide how to allocate enforcement resources. A letter from more than one hundred law professors’ concludes:
It is our considered view that the expansion of the Deferred Action for Childhood Arrivals (DACA) and establishment of the Deferred Action for Parental Accountability (DAPA) programs are within the legal authority of the executive branch of the government of the United States. To explain, we cite federal statutes, regulations, and historical precedents.Indeed, the government is moving forward on plans to hire additional adjudicators. Costs will be covered by user filing fees. This post is a snapshot of the status of the evolving situation, and our intention is to post further updates as the situation changes.
Employment-Based Actions Not in Question: Before summarizing the lawsuits that have been filed asking federal courts to end newly announced deferred action programs for certain undocumented people, it is important to note that no one questions the changes President Obama announced to the employment-based immigration system. This includes a clarification of the National Interest Waiver standard for permanent residence cases based on employment or great business ideas that will employ U.S. citizens, and plans to streamline the visa process. Those ideas are not being challenged.
Arpaio Suit Dismissed: The Arpaio suit was dismissed by Federal District Court Judge Beryl Howell, of the Washington, D.C. District Court, on December 23, 2014. Her decision denied the request for an injunction and granted the President’s motion to dismiss. Judge Howell’s decision is 33 pages long, but in essence is states that Sheriff Arpaio did not demonstrate that he would be subject to a “concrete and particularized” harm as a result of deferred action being extended to people who were brought to the United States as children and were educated in this country, as well as to the parents of U.S. citizens and permanent residents.
The decision noted arguments on both sides, noting Sheriff Arpaio’s assertion that this “Federal policy causes his office to expend resources in a manner that he deems suboptimal.” The Judge also notes the fact that deferred action is not a new enforcement tool, writing:
For almost twenty years, the use of deferred action programs has been a staple of immigration enforcement. The executive branch has previously implemented deferred action programs for certain limited categories of aliens, including: certain victims of domestic abuse committed by United States citizens and Lawful Permanent Residents; victims of human trafficking and certain other crimes; students affected by Hurricane Katrina; widows and widowers of U.S. citizens; and certain aliens brought to the United States as children. Programs similar to deferred action have been used extensively by the executive branch for an even longer period of time.
Criminal Case Ruling as to Constitutionality of Executive Action: A Pennsylvania federal judge advised in a criminal decision on December 16, 2014, that he believes the President’s Executive Action is unconstitutional. This decision has been widely criticized because neither of the parties to the criminal case had argued that constitutionality of executive action had anything to do with the criminal matter before the court. Because the decision arose in this context, it does not have the potential to invalidate Deferred Action.
Lawsuit by Texas and 24 other states: The State of Texas v. United States lawsuit poses a more serious challenge to Executive Action. Oral arguments in the case are scheduled for January 9, 2015, in Brownsville, Texas. The gist of this suit is that the deferred action initiative violates the clause of the Constitution mandating that the President “take care that the laws be faithfully executed.” It also objects to the lack of formal rule-making preceding the announcement, and claims that the announcement will harm states by causing new additional unlawful immigration to this country. You can read the complaint here.
On the other hand, the federal government, in a December 24, 2014, Memorandum in Opposition to the request for an injunction, argues that the executive branch has discretion in immigration enforcement. The memo states:
Congress has directed the Secretary to establish “national immigration enforcement policies and priorities.” Homeland Security Act of 2002, Pub. L. No. 107-296, § 402(5), 116 Stat. 2135, 2178 (codified at 6 U.S.C. § 202(5)). These priorities are essential: Congress has appropriated sufficient resources for DHS to pursue only a small fraction of the violations it confronts. In particular, recent funding provided to DHS’s U.S. Immigration and Customs Enforcement (“ICE”), the component of DHS charged with enforcing the interior, has allowed the agency to annually remove only a small proportion of the estimated 11.3 million undocumented aliens living in the United States…. Such significant constraints require DHS to “ensure that [] its limited resources [are] devoted to the pursuit of” its highest priorities: “national security, border security, and public safety.”
The idea is that we have to make decisions and draw lines somewhere, so the President’s Deferred Action program is just his exercise of an inherent authority to draw those lines where he wishes. The Department of Justice also points to the D.C. District Court decision in the Arpaio case in asserting that the states lack standing to sue because they themselves are not subject to the deferred action guidance and cannot show they will be directly harmed by it.