Private: The President and States in a Partisan Battle Over Immigration Policy

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.

This partisan pattern would eventually lead to DAPA’s formulation, and the lawsuit that followed. In announcing DACA in 2012, the president expressed the hope that his executive action would spur federal lawmakers to compromise and pass comprehensive federal immigration reform. That aspiration never came to fruition. Again, partisan dynamics were to blame, with the bipartisan bill (S. 744, which included paths to legalization and changes to the visa allocation system) passing in the Senate in 2013, but failing to pass the House. Thus, in November 2014, with prospects for federal law dead, and according to GOP lawmakers, a non-starter through the coming legislative terms, the president expanded his popular DACA program and supplemented it with DAPA.

In the immediate aftermath of DAPA’s announcement, state and local coalitions became proxies for opposing, partisan viewpoints in our national debate on immigration. Several dozen city mayors – nearly all Democratic – met together under the banner of Cities United for Immigration Action, to discuss ways of implementing policies to ease the integration DACA and DAPA beneficiaries. On the other hand, several state governors – all Republican – met to discuss ways to thwart the president’s program, resulting in the current lawsuit that has halted DAPA’s implementation for over a year.

In a way, the Texas suit represents the flipside of the Arizona case. Whereas in 2012, it was a Democratic federal executive using the judicial forum to shut down immigration enforcement regulations from Republican states, in 2016 it is a coalition of Republican states suing to derail the enforcement policy of that same Democratic president. Unlike Arizona, however, it remains to be seen whether the state of Texas can actually invoke the federal court’s power to adjudicate the legality of the president’s program. Whereas preemption suits against state policies on federal supremacy grounds are common (even if the federal government’s instigation of such suits in the immigration field is not), in the mid-1990’s, several circuit courts of appeal turned away state challenges to federal immigration enforcement schemes. More recently, other attempts to legally contest DACA and DAPA - one brought by ICE agents and the state of Mississippi and another brought by the notorious Sheriff Joe Arpaio of Marciopa County, Arizona – were dismissed for lack of standing. In doing so, federal courts essentially made the determination that the plaintiffs’ disagreements with the executive policies should be resolved in political forums, not in judicial ones.

Depending on the Supreme Court’s resolution of the standing question, the current Texas case could offer states a new avenue to disrupt federal administrative policies and indirectly influence immigration enforcement. Under Texas’ theory, any administrative action that increases costs to the state (whether Texas actually suffers this injury is a disputed point in the case) would allow a state to judicially challenge – and at least halt and delay, if not dismantle – federal administrative actions. Notably, resolving the standing question in Texas’ favor would have this consequence, even if the Court were to uphold DAPA on the merits.

Given party polarization on immigration and a gridlocked Congress, such a scenario will almost surely result in increased lawsuits – organized along party lines – by states against the federal government on issues of immigration policy disagreement. This is no chimerical prospect. Indeed, even outside a formal policy like DAPA, everyday administrative decisions to defer prosecution or grant employment authorization would conceivably increase costs to states like Texas.

In addition, consider that several Republican governors (many from the same states that are plaintiffs in Texas) vowed to stop Syrian refugees from resettling in their states. It is not inconceivable that, assuming the Court rules favorably on Texas’ standing in the current case, those states could also sue to stop, or at least delay, the State Department’s refugee resettlement plan on the theory that the presence of refugees will financially burden the states.

Perhaps fittingly, the Supreme Court will likely provide answers to these critical questions in late June…just a few weeks before the Republican and Democratic National Conventions. With congressional gridlock on immigration likely to hold steady at least through the next presidential term, immigration will continue to remain one of the most polarizing and critical issues on our national agenda, with the president and states continuing to wrestle over immigration policy. Depending on the outcome in Texas, we might see federal courts increasingly used as the battlegrounds for that highly partisan contest.

Executive Power, Immigration