Josh is also right to suggest that yesterday’s decision is much more carefully argued than an earlier poorly reasoned December federal district court decision in Pennsylvania, which concluded that the entire policy is unconstitutional. However, the two decisions have some important common weaknesses. Both misconstrue Obama’s new policy as a change in law rather than an exercise in enforcement discretion, and both rely on a dubious distinction between “case-by-case” discretion and more generalized policy judgments.
I. Deferring Deportation does not Amount to Creating “a New Law.”
Judge Hanen recognizes that the Department of Homeland Security (and presumably the president) has broad “authority…to dictate DHS objectives and marshal its resources accordingly.” Normally, the exercise of enforcement discretion by the president and his subordinates does not trigger a requirement of formal rulemaking under the APA, and is not unconstitutional. But Hanen claims that the administration’s new policy creates “a standard of conduct” that “has the force of law” and is “clearly contrary to Congress’ intent.” He claims that “[t]he DHS cannot reasonably claim that under a general delegation to establish enforcement policies, it can establish a blanket policy of nonenforcement that awards legal presence and benefits to otherwise removable aliens.” In his view, the administration’s policy is “in effect, a new law.”
As with the similar claim in the December decision, this reasoning fails because the administration’s decision does not actually have “the force of law” or legalize the status of previously illegal immigrants. While the administration has committed to a policy of not deporting those aliens who fall within the scope of the policy, it has not declared their presence in the US to be legal, nor given them any “benefits” that have the force of law (the benefits in question are primarily exemption from enforcement of federal laws banning the employment of illegal aliens [But see UPDATE #3 below on this point]). Both the acceptance of their presence in the US and the work permits can be withdrawn by President Obama or his successors at any time. By contrast, the executive cannot and does not have the power to revoke legal status that genuinely has the force of law, except perhaps in cases where Congress has specifically delegated the power to do so.
In this respect, as I have argued previously, the new policy is little different than numerous other situations where the executive branch chooses not to enforce a variety of federal laws in particular situations, such as the de facto policy of not enforcing federal laws banning marijuana possession on college campuses. The latter actually affects a far larger number of lawbreakers than Obama’s new immigration policy does. Some 70% of Americans have violated federal criminal law and millions have also violated various federal regulations that carry civil penalties. Every administration chooses to pursue only a small fraction of these cases, and in the process effectively exempts large categories of offenders from any legal sanction.
In some sense, both the marijuana policy and immigration policy are “contrary to Congress’ intent.” Both the ban on marijuana and federal immigration law are written in general terms that do not specifically authorize the selective enforcement various presidents have engaged in. But the same can be said of virtually every other situation where the executive punishes only a small subset of all those who violate a given federal law. Such cases are troubling. We should try to minimize their incidence by reducing the scope of federal law and ensuring that those federal laws on the books enjoy broad bipartisan support, so that administrations that fail to enforce them effectively will face political retribution. But, troubling as it does, wide-ranging use of executive discretion does not violate either the Constitution or the APA.
The exercise of executive discretion is even less problematic in the immigration field than in some others, because courts have long interpreted the relevant statutes as giving broad discretion to the president. As the Supreme Court noted in Arizona v. United States (2012), “[a]principal feature of the removal system is the broad discretion exercised by immigration officials” which, among other things, extends to deferring deportation based on humanitarian “concerns,” such as the ones that led the administration to defer it in the case of immigrants with longstanding family and other ties to the United States.
II. The President Can Use His Enforcement Discretion in ways that Restricts the Discretion of His Subordinates.
Both Judge Hanen and the December ruling also emphasize that the Obama immigration policy is unusual in that the relevant discretion is exercised almost entirely by the DHS Secretary and the President rather than on a “case-by-case” basis by lower-level officials. This argument, too, collapses under any close inspection, for reasons I outlined in my December Reason article on Obama’s policy:
Some argue there is a crucial distinction between case-by-case decisions not to prosecute (as with marijuana possession on campus) and a generalized, systematic policy of not doing so in a category of cases. But that distinction makes little sense…. Unless case-by-case exemptions are to be completely arbitrary and capricious, they must be guided by at least some general principles, such as the considerations relating to the risks posed by letting the offender go and the moral blameworthiness of his conduct. Once the legitimacy of using such principles to guide prosecutorial discretion is conceded—as it must be—then there is nothing wrong with announcing them in advance and applying them as general rules. If lower-level federal prosecutors and immigration officials can apply such principles, then their superiors—including the president—can issue orders requiring them to do so in a consistent and systematic way.
I would add that this argument privileging of lower-level officials is particularly strange coming from conservative supporters of the theory of the “unitary executive,” which holds that all power wielded by the executive branch must ultimately be controlled by the president (which includes many of those claiming that Obama’s policy is unconstitutional). As the nation’s highest-ranking federal law enforcement official, the president surely has the authority to regulate the use of discretion by his subordinates. He can also empower higher-ranking subordinates, such as the DHS Secretary in this case, to restrict the discretion of lower-level ones. And in a policy area where the president and the Secretary have thousands of subordinates who address hundreds of thousands of cases, often the only way for the president to effectively exercise his own discretion is to issue general policies restricting the discretion of lower-level officials.
I don’t claim that the above considerations definitively prove that the administration’s policy complies with the APA. I am not an APA expert, and there may be some issues I have overlooked. I do think, however, that these points undercut Judge Hanen’s main arguments.
Finally, it is worth mentioning that the first half of Judge Hanen’s lengthy opinion focuses on the question of whether the 26 states challenging Obama’s policy have standing to sue. He ultimately (correctly, in my view, concludes that they do). This is yet another interesting example of conservatives advocating relatively broad theories of standing in recent years, and some liberals advocating a relatively narrow approach. It is a further sign of the ongoing erosion of traditional ideological divisions on this issue, under which conservative Republicans once supported a restrictive approach to standing, while liberal Democrats took the opposite view. That division has given way to one in which both sides tend to approach standing issues opportunistically, adopting whichever approach is most likely to promote their substantive positions in a given case.
Overall, yesterdays’ decision is a modest victory for opponents of Obama’s policy. But the legal battle over this issue is just beginning. The administration will appeal the ruling to the Fifth Circuit Court of Appeals. If a federal appellate court ends up invalidating the policy, the issue might well end up in the Supreme Court, though unlike Josh Blackman, I doubt it will happen soon.
UPDATE: Patrick Brennan of the National Review, an opponent of Obama’s policy, notes that Judge Hanen is a George W. Bush appointee with “a record of hawkish immigration opinions.” As Brennan points out, “[t]hat has no bearing on the logic of his decision, but it might suggest other judges won’t necessarily agree with Hanen’s reasoning.”
UPDATE #2: I have edited the wording of of this post in a couple places to make it more clear.
UPDATE #3: The administration also claims that the Immigration and Naturalization Act gives it the authority to grant work permits that would exempt those holding them from future prosecution. But if this claim is not correct, that would not invalidate Obama’s entire policy, but would simply mean that the permits merely exempt them holders from prosecution for as long as they are covered by Obama’s policy itself. That inclusion can, in any event, be rescinded by the president at any time.
UPDATE #4: Michael Ramsey comments on this post here. He agrees that the administration has the power to defer deportation of the immigrants covered by the new policy, but argues it does not have authority to grant “affirmative benefits” such as the work permits. As I noted in the previous update, if these “benefits” are not authorized by statutory law, as the administration claims, then they amount simply to nonenforcement laws against employment of these particular illegal aliens. Ramsey also cites the three year “immunity” from the law. But that “immunity” is simply a formalization of nonenforcement and could be repealed at any time, and would not prevent future prosecution by either the Obama administration or a successor.
Finally, Ramsey suggests that the administration’s policy requires state governments to “to treat the covered persons as legally entitled to remain in and work in the United States on the same terms as legal immigrants” and may forbid private employers to refuse to hire them on the basis that their presence in the US is illegal. I am not aware of the new policy imposing any obligations on state governments beyond the ones they already have under decisions such as Arizona v. United States, which hold that some state laws intended to enforce immigration law are preempted by federal law. As for private employers, the administration’s position is that the immigrants covered by the new policy are still illegal. Moreover, there is no federal law forbidding private employers from discriminating based on legal status. Judicial and regulatory interpretations of Title VII of the Civil Rights Act of 1964 do restrict such discrimination if it is a pretext for racial or ethnic discrimination, and in some cases if it has a “disparate impact” on particular racial and ethnic groups. I am no great fan of disparate impact law. But the new Obama immigration policy is not the source of it, and does not make it worse than it was before.