This is the second part in my series about the government’s appellant brief in Texas v. United States. Part I is here about the propriety of a “nationwide injunction.”

During oral arguments before Judge Hanen last month, the government lawyer, Kathleen Hartnett, said something she probably shouldn’t have said. Judge Hanen asked whether the Secretary was prohibited from setting his enforcement priorities under his injunction. The correct answer is that he is not. But Hartnet conceded a point that severely undercuts the entire notion that DAPA is solely a matter of enforcement priorities.

Hartnett’s answer to Hanen’s commonsense alternative was striking: The president chose to offer work authorization to millions to “provide an incentive for people to come out and identify themselves.” The lawyer repeated that “work authorization is a large incentive for getting people to be able to come out of the shadows, as it said, and to identify themselves.” In other words, an assurance to not deport an immigrant who is here unlawfully was not a sufficient justification — it was necessary for the president to hand out 5 million new work authorizations. …

She asserted that the “law-enforcement officials that run the Department of Homeland Security had made the judgment that [DAPA was] the right way to get people to come out [and] account for themselves.” But what about the simpler alternative where immigrants are not “bribed”? The government lawyer responded that “I think the judgment has been made that that’s the way that the program would best work.”

The DOJ’s appellant brief makes this point with more finesse, but to the same effect:

The injunction prevents DHS from most effectively allocating its resources regarding removal of aliens to support its paramount mission to protect the Homeland and secure our borders. The 2014 Guidance is an integral part of the Secretary’s efforts to prioritize the removal of aliens who most threaten national security, public safety, and border security. It is no answer to say, as the district court did, that the injunction does not prohibit the Secretary from setting enforcement priorities. The Guidance facilitates the implementation of those priorities. Instead of spending valuable resources determining whether encountered individuals should be prioritized for removal, DHS can rely on deferred action documentation to quickly determine that they should not be. As the highest-ranking official for U.S. Immigration and Customs Enforcement explained, the injunction thus “interferes with the Federal Government’s comprehensive strategy for enforcing our immigration laws.” ROA.4540; see also Arpaio, 27 F. Supp. 3d at 210-11 (“Halting these deferred action programs would inhibit the ability of DHS to focus on its statutorily proscribed enforcement priorities (national security, border security, and public safety)”).

The key language is “The Guidance facilitates the implementation of those priorities.” What does that mean? The argument goes like this.

In order to help Homeland Security agents quickly distinguish dangerous immigrants from those who pose no threat, the president had to grant, he claims, quasi-legal status to 5 million immigrants. Once the immigrants sign up, his argument goes, they will undergo background checks and receive a biometric ID, making it a lot easier for DHS agents to identify them. Oh, and by the way, because halting millions of deportations was not reason enough to coax immigrants to “come out of the shadows,” the president will approve virtually every single applicant for work authorization, Social Security benefits, and even the earned income-tax credit, as an “incentive” to sign up.

The President is using the work authorization–which is permitted by statute and regulation–as an incentive to get people to sign up for deferred action. This is the very sort of policy decision that should be a legislative choice, rather than an executive action. Before DACA, deferred action and work authorization were used on such a small scale. People who were granted deferred action, incidentally were given work authorization. The way DDAPA employs work authorization is not consistent with the type of incentive Congress would want to encourage people to sign up for a policy they did not approve of. The prioritization is, and always has been, a veneer for presidential lawmaking. The goal is to provide a quasi-lawful status for millions, not to make it easier for immigration officials to investigate.

Ultimately, this becomes a case of the tail wagging the dog. It is certainly true, at the margin, that providing 5 million aliens with work authorization, to induce them to provide documentation to the government, will make the jobs of immigration officials easier. I don’t doubt that at all. The question becomes, does the President have such latitude to effectively exempt five million aliens from the scope of the naturalization laws, in order to shorten the amount of time it takes to run a background check.

Now, you may reply that the government can choose to means with which to accomplish legitimate ends. That is certainly true of Congress, but not of the President acting alone.

Since the seminal case of McCulloch v. Maryland, authored by Chief Justice John Marshall, Congress has had wide latitude when choosing how to accomplish its objectives: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” In other words, courts defer to Congress when it chooses one approach over another to accomplish legitimate policy goals.

But we should not lose sight of the fact that DAPA is not an act of Congress, but a unilateral exertion of executive power. Rather than representing the wisdom of Congress — the branch that can set policy — DAPA amounts to a brazen effort to rewrite the law in the president’s own image. The implausible “national security” argument — which is entirely at odds with anything Congress has ever thought of — solidifies the gap between the executive and the legislative branches.

If Congress were to pass a statute that provided work benefits to undocumented immigrants to promote national security, some might doubt its efficacy, but the judiciary would have no license to question its wisdom. DAPA presents an entirely different calculus. To determine whether the president is adhering to his constitutional duty to “take care that the laws be faithfully executed,” we must determine whether the president is acting in good faith to comply with the laws, or deliberately deviating from them to achieve a contrary policy. The president’s own flimsy arguments in court, which crumble under the laxest scrutiny, demonstrate what DAPA is really about. The judiciary need not defer to this tendentious position, and should recognize it for what it is — a mere smokescreen to allow the president to write his own laws.
Promote public safety

To borrow from another area of the law, this bold act of non-enforcement is a “great power” unto itself that cannot be bootstrapped to the more conventional notion of increasing the efficiency of background checks.

I appreciate that the posture of the case primarily concerns the APA Clause, and not the Take Care clause, but as I argued before, the Heckler v. Cheney “complete abdication” test offers a useful framework to think about the President’s duty of faithful action.

Update: I sent this note to a colleague, which I think may clarify the issue:

The issue before Judge Hanen was whether the government could continue to set priorities to protect national security while his injunction was in place. Ostensibly this is the same question that is before the 5th Circuit.

The DAAG explained that the government could not, because the Secretary found that the work authorization–enjoined by Judge Hanen–was needed as an “incentive” to get people to “come out of the shadows” and sign up. The prioritization alone, in the absence of the work authorization, would not be adequate. This was the government’s position, and not a bizarro universe.

If the government had just deferred the deportation of 5 million aliens, without providing the work authorization (and other related benefits), I don’t think it would have been nearly as much of a problem. That approach would more-or-less maintain the status quo we have today where only ~400,000 can be deported annually. But DAPA goes much further, and in my mind crosses the line. It vests them with a host of benefits that amounts to an effort to give them a quasi-lawful status that is beyond anything Congress has ever sanctioned, and will be very difficult politically to ratchet it back. This, in part, is what renders it not in “good faith,” under the “Take Care” clause.

Relatedly, this isn’t controlled by Necessary and Proper, but the bootstrapping argument here reminded me of the Chief’s opinion in NFIB where he held that the Necessary and Proper clause would not reach to a mandate, even if it would make the regulation of the health insurance market more efficient. Ditto here, the President’s decision to alter the status quo for 5 million aliens by giving them quasi-lawful status is not “proper,” even if it makes the immigration system more “convenient,” or makes national security stronger. It is the bootstrapping that crosses the line.

I recognize that we don’t have much caselaw here, and I am offering novel theories, which I gladly concede are not entitled to any deference.

Update 2: Let me try explaining this a different way. The end of giving deferred action and work benefits is not illegitimate, as McConnell argues. Rather the means of how the President has achieved these ends are illegitimate. This is why I brought up the Necessary & Proper doctrine. It may be convenient for the President to implement DAPA in order to make the prioritization more effective, but I think its propriety is judged against the good faith standards of the Take Care clause. Taking the unprecedented step of conferring deferred action + work authorization on millions who have no prospect of a visa, as a means to prioritize aliens and make identification easier, is a case where the lesser power (prioritization) is dwarfed by the greater power of (temporarily) exempting millions from the enforcement power. This is why I use the image of the tail wagging the dog. I discuss the “good faith” standard in my article (which I will be updating shortly when the next round of edits arrive), but the “incentives” argument makes the case for not acting in good faith even stronger.