April 15, 2016

Notice and Comment Rulemaking in United States v. Texas


DAPA, immigration, Shoba Sivaprasad Wadhia, United States v. Texas

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

On November 20, 2014, President Obama announced two deferred action programs. One extends a program known as Deferred Action for Childhood Arrivals, or “DACA.”  The other creates a new policy known as Deferred Action for Parents of Americans and Legal Residents, or “DAPA.” Despite the fact that deferred action is a longstanding tool in immigration with a rich source of law and history, the state of Texas and 25 other states filed a lawsuit against the Administration to challenge the legality of these programs. The case, United States v. Texas, is the subject of an oral argument at the U.S. Supreme Court on April 18, 2016. The Court will hear arguments on four questions of law. Legal questions over the authority to exercise discretion and whether the plaintiffs have “standing” to bring this challenge have been analyzed extensively by scholars. This article discusses one of those issues – whether the updated DACA and new DAPA directives were legally required to undergo “notice and comment rulemaking” under the Administrative Procedure Act (APA).

The plaintiff-states have argued that rulemaking is required under the APA. For certain rules, section 553 of the APA requires agencies to engage in formal rulemaking, where the government publishes a notice of the proposed rule and the parties then provide input primarily through the submission of written comments within a specified time period. Recognizing that the government would be unable to function efficiently if all rules required this lengthy and elaborate procedure, section 553 exempts "general statements of policy" from the notice and comment rulemaking requirement. The Supreme Court has held that "general statements of policy" include agencies' announcements as to how they plan to exercise discretionary powers going forward.

In the memorandum announcing DAPA, the Secretary of Homeland Security explicitly instructed U.S. Citizenship and Immigration Services (USCIS) officers to assess the facts of each individual case and to exercise discretion even in cases where all the threshold criteria – some of which are themselves discretionary – have been met. The challengers argue that this is a pretext and that in practice USCIS officials will be pressured into approving DAPA requests mechanically. To prove this, Texas has relied on the low rate of denials among recipients of an earlier program, DACA 2012.

This rationale is flawed. First, the DAPA program has discretion built into it as confirmed by the program’s actual requirement that the individual “present no other factors, in the exercise of discretion, that makes the grant of deferred action inappropriate.” Second, DACA requestors are a highly self-selected group. Moreover, the DAPA program has not even begun, so there is no evidence to show that employees are not using discretion, assuming of course the test even rests on the discretion exercised by boots on the ground as opposed to the Secretary of DHS, a point reasonably questioned by scholars. There is no basis for assuming that the DAPA approval rates will mimic those for DACA.

Under the challengers’ logic, I could determine whether my five-year-old is completing his homework based solely on my eight-year-old’s completion rate. Importantly, every guidance document published by the immigration agency (INS and DHS) on prosecutorial discretion has been published as a “general policy statement” exempt from the notice and comment rulemaking requirement.  As explained in a letter by 104 law professors in response to Fifth Circuit Judge Andrew Hanen’s opinion in this case, “The mere existence of guiding criteria has not meant and does not with DAPA and DACA mean that applications are merely rubberstamped.” In this way, the states have gravely mistaken an act of transparency for a violation of the law.

Long before the current litigation and unrelated to the arguments espoused in Texas I have supported the use of notice and comment rulemaking for the longstanding deferred action program (pre-dating DACA or DAPA) or, in the alternative, a program assembled with more formality like the 2012 DACA program. But my recommendation for codifying deferred action reacts to a significant historical absence of transparency and information about the general deferred action program. No one could suggest that the current DAPA program suffers from a lack of transparency. Also important is the difference between mandatory rulemaking required by the APA and “voluntary” rulemaking that is permissive—a distinction and discussion that has had no real space in the current political landscape.