• January 20, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    Early Tuesday, January 19, 2016 the United States Supreme Court agreed to hear the case of United States v. Texas, a largely political lawsuit brought by a faction of 26 states challenging the legality of two programs announced by President Obama on November 20, 2014. Specifically, the high court agreed to hear arguments on the following issues: “(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.” Rulings on the first three of those issues were requested by the government; the fourth issue was raised on the Court's own initiative.  On November 9, 2015, by a 2-1 majority, a panel of the Fifth Circuit Court of Appeals ruled against the Administration.

    The executive actions being challenged by states are coined as an expansion of “Deferred Action for Childhood Arrivals” (DACA) and the creation of "Deferred Action for Parents of Americans and Legal Residents” (DAPA). These actions would expand a pre-existing deferred action program for young people and create a new program for qualifying parents who have resided in the United States for at least five years. Deferred action is a form (among more than a dozen forms) of prosecutorial discretion in immigration law. When prosecutorial discretion is exercised favorably towards a person, the government (in this case Department of Homeland Security or DHS, the agency whom Congress has specifically delegated to administer and enforce the immigration laws) abstains from bringing a legally valid immigration charge against a person or group of persons. Prosecutorial discretion exists for humanitarian reasons to the extent the individual bear positive equities like intellectual promise or the position as a primary caregiver to a family; and for economic reasons as DHS has limited resources and the responsibility to target its enforcement against true priorities. This dual activity of enforcing the immigration laws against high priorities and exercising prosecutorial discretion favorably towards others lies at the core of the Take Care Clause which I have described in earlier work in the following way:

    Importantly, the President’s faithful execution of the immigration laws is not just limited to bringing enforcement actions against individuals and ultimately deporting them, but also to prioritizing the deportable population in a cost-effective and conscientious manner, and providing benefits to deportable noncitizens when they qualify for them. The President must “walk and chew gum” at the same time to carry out an effective immigration policy. 

    Apart from the deferred action programs is another memo announced on November 20, 2014 entitled “Policies for Apprehen­sion, Detention, and Removal of Undocumented Immigrants.”  These policies identify priorities for removal which include but are not limited to those with criminal histories, recent entrants, and those with removal orders issued on or after January 1, 2014. This memo is operational today and has sparked great debate and controversy since the Administration’s announcement to conduct raids against Central American families and unaccompanied children who seemingly fall within these priorities. This same memo contains a primer on the use of prosecutorial discretion, but immigration attorneys and advocates have criticized its actual implementation since its inception.

  • January 20, 2016
    Guest Post

    by Gabriel J. Chin, Martin Luther King Jr. Professor of Law, UC Davis School of Law

    The Supreme Court granted certiorari this week in United States v. Texas; the case will undoubtedly be one of the term’s most interesting, important, or both. In a 2-1 decision, the Fifth Circuit invalidated the Obama Administration’s DAPA program making “deferred action” available to as many as four million unauthorized migrants who are parents of U.S. citizens or green card holders. Deferred action represents a formal decision by the government to exercise prosecutorial discretion not to initiate deportation proceedings; it creates neither a right to remain nor a path to permanent status. However, by regulation, the government may grant work authorization to holders of deferred action.

    The Court will review several critical questions.

    The merits issues are whether the administration had the power to establish the program, and if it did, whether it should have gone through formal notice and comment under the Administrative Procedure Act. As Congress does not appropriate enough money to completely enforce the immigration laws (or any other laws, for that matter) there is no question that prosecutorial discretion, for better or for worse, is inevitable. There is also little doubt that even in the government, bosses are allowed to give direction to subordinates about how programs are to be carried out.

    The line between permissible “guidance” and formal, binding enforcement rules requiring notice and comment is debated by the parties. But given that the program does not purport to give noncitizens enforceable rights to relief and allows for case by case, discretionary evaluation of applications in the field, there is a strong reason to believe that the program constitutes permissible enforcement guidance. Certainly it is hard to dispute the idea that, in principle, discretion should be exercised consistently, transparently, and based on reasons rather than at the whims of individual officers in the field. I consider it unlikely that a majority of the Court will rule that general, non-binding guidance of this sort is impermissible.

  • January 19, 2016
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law at Santa Clara University. Professor Gulasekaram teaches constitutional law and immigration law. He is also the co-author of the recently published book, The New Immigration Federalism (Cambridge Press).

    A Supreme Court term already loaded with high-profile cases on unions, voting representation, abortion, and affirmative action just added another blockbuster. The Court’s decision to hear United States v. Texas, the challenge to President Obama’s 2014 Deferred Action for Parental Accountability program (DAPA) by 26 states or state officials, will have far-reaching consequences for both the future of immigration enforcement and the power of states to upset those policies. In resolving the case, the Court holds in the balance the lives and livelihoods of an estimated five million persons, nearly half of the current undocumented population of the United States.

    The program has been on hold since a federal district court judge in Texas ruled that the Obama Administration (specifically, the Department of Homeland Security) violated the Administrative Procedure Act’s requirement of “notice and comment” rulemaking when it implemented DAPA. On appeal, a split Fifth Circuit panel ruled that even if DHS had complied with notice-and-comment procedures, DAPA was beyond the agency’s statutory authority. In addition, both lower courts found that the state of Texas had standing to prosecute the case, allowing a federal court to reach those conclusions on the merits. In granting certiorari, the Supreme Court asked the parties to also brief the question whether the President’s action was a violation of his constitutional duties under Art. II to “take care that the laws be faithfully executed.”

    Of course, the merits questions in the case raise difficult and important questions of delegated statutory authority to the executive branch, administrative law and procedure, and, most broadly, the president’s constitutional authority. I will not comment on these, as they have been the subject of extended commentary here, here, and here. Of the questions presented, the standing inquiry might be the least discussed, but one with the potential to seriously affect immigration policymaking well beyond the current presidential administration and programs like DAPA. This is especially true in our present-day quagmire of party polarization and congressional gridlock. Before discussing the case itself, though, it is worth contextualizing the political and legal dynamics that have culminated in this landmark case, highlighting the role both partisanship and federalism have played in landing Texas before the high Court.

    As I detail in a recently co-authored book, immigration policy since Sept. 11, 2001 has fallen victim to party polarization in a way that had previously not been true of immigration politics. That polarization largely explains the inability of Congress to pass immigration over the past 15 years, despite several attempts and broad support from the American public. In turn, Congress’ silence has cleaved space for two emerging policy dynamics. First, states have stepped more fully into the legislative void, enacting an unprecedented volume of both restrictionist and integrationist policies. Second, the federal executive branch has become much more conspicuous and robust in fashioning immigration policy through both enforcement calibration and litigation. The Texas case implicates both trends, and their partisan roots, simultaneously.

    From 2004 through 2011, restrictionist state enactments reached record levels, with most of those policies enacted by Republican-controlled state governments seeking to enhance immigration enforcement and encourage unauthorized immigrants to “self-deport.” As I chronicle in a forthcoming law review article, the Obama Administration took the unusual step of suing several states – including Arizona and Alabama – to quash these state immigration regulations. The Court’s 2012 ruling in Arizona v. United States struck down several provisions of these laws, based in large part on a conflict between the state laws and the Administration’s enforcement priorities. Upholding the state immigration enforcement law in Arizona would have changed business-as-usual in immigration federalism, shifting significantly more power to the states to potentially dictate the volume and characteristics of immigration enforcement. Instead, some have argued that the case reified – perhaps expanded – executive control over immigration policy.

    As it turned out, the administration’s victory in Arizona was only the second most prominent executive-led immigration event of 2012. That summer, the president announced his Deferred Action for Childhood Arrivals program (DACA), providing deportation relief and the possibility of employment authorization to a large portion of undocumented youth. DACA, along with the Arizona case and the president’s reelection, triggered another wave of state and local enactments, but this time with a more integrationist bent. States expanded driver’s license, public assistance, and educational benefit availability for undocumented immigrants. Not surprisingly, in contrast to restrictionist schemes, integrationist policies were passed almost exclusively from jurisdictions – like California and New York City - controlled by Democrats.

  • January 19, 2016
    Guest Post

    by Leticia M. Saucedo, Professor of Law and Director of Clinical Legal Education, UC Davis School of Law

    The Supreme Court granted certiorari in United States v. Texas today, agreeing to hear the federal government’s questions on its immigration policy and adding one more. The Court will decide whether the federal government’s policy to postpone the deportations of millions who are in the United States in undocumented status is arbitrary and capricious, whether it was subject to the APA’s notice and comment procedures, and whether the states have standing to sue. The Court added a question that was not decided in the lower courts, namely, whether the policy violates the Take Care Clause in Art. II, Sec. 3, which requires the president to take care that the laws of the United States are faithfully executed.

    At issue in this case is the president’s announcement of a guidance that would defer action on the undocumented noncitizens in the United States who have lived in the United States for five years and who came as children, or who have U.S. citizen or permanent resident children. The federal government claims that the president’s guidance is permitted under immigration law, which allows the Department of Homeland Security to postpone, for its own convenience or for humanitarian reasons, the removal of noncitizens from the United States. The immigration statute also allows the Department of Homeland Security, for its own convenience, to issue employment authorization to these individuals. Notably, deferred action does not bestow any form of legal status on noncitizens, nor does it provide any benefit.

    The most interesting part of the Court’s grant is its signal that it will decide whether the president’s guidance violates the Constitution’s Take Care Clause. The questions of whether the president has faithfully executed the laws of the United States requires a deep understanding of the multi-dimensional nature of the immigration law at stake.

  • December 10, 2015
    Guest Post

    by Ira C. Lupu, the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle, the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University. They are the co-authors of Secular Government, Religious People (Eerdmans Publishing Co., 2014).

    Constitutional lawyers and immigration experts have offered conflicting opinions on the constitutionality of Donald Trump’s proposal to prohibit Muslims from entering the United States. Some constitutional scholars have argued that the proposal violates the Constitution. Immigration experts, including Professor Gulasekaram and others, have expressed doubt that an American court would strike down such a plan, in light of the broad authority over immigration policy that the Supreme Court has recognized in the Congress and the President.

    Prior decisions by the Supreme Court have indeed confirmed that immigration policy may rest on considerations of national origin and ancestry. But no decision by the courts has confronted an exclusion based on religion, and any such policy is constitutionally doomed.

    The reason is probably not religious favoritism, which would be fatal to any domestic policy that preferred members of one faith to others. Instead, Trump’s policy certainly offends the Constitution because it would require the government to decide who belongs to the Muslim faith.

    Imagine the process for obtaining a visa to enter the United States, as a tourist, student, or any other relevant status. The applicant completes a form. In addition to the current questions, the Trumpian form might ask “Are you a Muslim?” or it might have a broader question about faith, with boxes to check like “Muslim,” “Christian,” “Jewish,” or “Atheist.” Anyone who answers “Muslim” will be denied a visa. So far, the inquiry alone violates no constitutional norms, although the policy of denying entry to self-admitted Muslims is constitutionally questionable.

    But what happens with an applicant who comes from a predominantly Muslim country, or has a name that suggests a Muslim heritage, yet checks a box other than “Muslim?” Will the system depend entirely on the applicant’s declaration? That system would collapse.  Any Muslim who wants to enter the U.S. and is willing to deceive will do so. Now what?  For the system to work, every applicant would have to be interrogated. And what would be the relevant questions? “Do you believe that there is only one God, and his name is Allah”?  “Do you believe that the Quran is a sacred text”? The government cannot exclude someone as a Muslim unless there are criteria for determining which beliefs characterize one as a follower of Islam.

    At this point in the process, the First Amendment’s Establishment Clause kicks in with a vengeance. The Clause is in the Bill of Rights, but it does not function as an individual “right.” Instead, it imposes a limit on the character and jurisdiction of the government.  The people of the United States belong to many faiths or to none, but the government itself has no religious identity. It is secular. Congress has no power to contravene this principle, whether or not the matter involves immigration.