My New Article in National Review: Challenge to DAPA Now “On The Wall”

February 18th, 2015

National Review published my essay explaining the significance of Judge Hanen’s decision enjoining DAPA. I broke down the opinion in this post, and my NRO essay provides a bigger picture analysis.

First, now that Judge Hanen has issued a serious 123 page decision, supporters of DAPA can no longer scoff and laugh at the arguments.

When Texas filed a constitutional challenge to President Obama’s executive action on immigration, his supporters scoffed and ridiculed the suit as lacking any merit. First, they argued, states are not injured by the federal policy. Second, they contended that Congress had already given the president the discretion to halt the deportation of millions. Finally, they predicted that the courts would stay out of this important policy debate. The Justice Department’s brief rebuked the suit, alleging that the claims “are based on rhetoric, not law.” Judge Andrew S. Hanen in Brownsville, Texas, disagreed. In a massive 123-page opinion issued on Monday, Judge Hanen thoroughly rejected each of these arguments, vindicating Texas — and 25 other states that joined it — in this challenge to the president’s disregard of the law.

Say what you will about Judge Hanen’s previous decisions, but a 100+ page opinion is not a hack job. There is a serious legal issue here that a judge approached in a thoughtful way. I candidly admit that reasonable minds can differ on this difficult topic, but it simply isn’t the case that a partisan judge ruled based on ideology. The depth of the analysis makes this point clear. Compare Hanen’s opinion with Judge Howell’s cursory decision in the Arpaio litigation, where she uncritically accepts all of the government’s arguments in a few meager pages, or the decision from the Western District of Pennsylvania where the court improperly reached the issue. This reminds me of Judge Vinson’s decision in the Obamacare litigation for its depth.

Second, now a federal judge has lent his imprimatur to the challenge. Much like the early days of the Obamacare challenge, a common tact of the left was to delegitimize the arguments of Barnett and others. What made the challenges gain salience, or in the words of Jack Balkin, go from “off the wall to “on the wall” was that it was accepted by a federal court. Namely Judge Vinson’s opinion. Now, Hanen has ruled in a similar fashion.

This case will soon be appealed by the DOJ to the Fifth Circuit Court of Appeals, and ultimately to the United State Supreme Court, but Judge Hanen’s thoughtful opinion has shifted the tenor of the debate. No longer can critics scoff at the argument that DAPA is unlawful. Hanen’s workmanlike decision has moved the arguments from “off the wall” to “on the wall.” The decision from Brownsville, on the literal and figurative border between the federal and state governments, is a first step toward restoring the separation of powers and ensuring that the president faithfully executes the laws.

Third, the court didn’t need to reach the constitutional issue, but as I’ve argued at some length the Heckler v. Cheney analysis closely mirrors a Take Care clause analysis. If a higher court wants to address this issue, Judge Hanen’s decision provides a basis for ruling in this area.

The court did not need to address the constitutional issue, and it did not address whether the president failed to comply with the Constitution’s requirement that he “take care that the laws be faithfully executed.” Judge Hanen, however, showed his hand by explaining that the president had engaged in a “complete abdication” of the law. Rather than enforcing the law, Hanen saw Obama’s actions as making law: The executive is “is not just rewriting the laws; he is creating them from scratch.” This is the role of Congress, not the president.

Fourth, Judge Hanen also gave the Court a narrow way of ruling. By finding that the APA was not complied with, a majority of the Court could simply invalidate the policy and require that it go through the notice-and-comment process. Of course, the Justices know that this will not, and cannot happen in the waning 22 months of the Obama administration. This minimalist approach, allowing the Executive branch to fix a problem, would be keeping with what my friend Richard Re calls the “doctrine of one last chance.” For example, in Shelby County the Court allowed Congress to fix the Voting Rights Act, even though everyone knows that won’t happen.

Even if the administration complies with the notice-and-comment process of the APA — unlikely with only 20 months until the next election — such a broad policy of non-enforcement would still run afoul of the Take Care clause.

If the Court takes this approach, they can run the clock out on the Obama administration.

This case will be appealed quickly, but we should not lose sight of the importance of this decision.