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This is the third 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.” Part II discusses the government’s use of DAPA as an “incentive” to get people to sign up for deferred action. This post will address what I think is the biggest obstacle for Texas’s “driver’s license” theory of standing: What is the limiting principle? In so many constitutional cases, the question always boils down to this issue.

The government’s brief charges that this approach to standing is “seemingly limitless”:

It allows States to sue based on nothing more than their disagreement with how federal officials prioritize their limited resources in light of real-world constraints—the very choices that the Constitution and federal statutes entrust to the Executive. Allowing States to manufacture Article III standing on the basis of such incidental and attenuated consequences would allow States to assert a seemingly limitless power to embroil the federal courts in reviewing virtually any exercise of discretion by the federal government.

“Seemingly limitless” is code for “no limiting principle.” Later in the brief, the government makes the argument more forcefully:

Most fundamentally, if the incidental and attenuated costs of state services provided to aliens with work authorization were a sufficient basis to enjoin the federal government’s immigration policies, a State could attempt to use similar incidental effects to justify a vast interference with countless exercises of federal immigration enforcement discretion, upsetting both the uniquely federal interest in immigration matters and separation-of-powers principles.

The district court’s driver’s-license theory of standing threatens to radically alter the balance between the States and the federal government contemplated by Article III, particularly, but not exclusively, in the realm of immigration enforcement.

Furthermore, neither plaintiffs nor the court identified any limiting principle that would confine the district court’s conclusion to the realm of immigration.

The brief lists several different actions that the government could take that may be challenged in federal court under this theory of standing:

The court’s rationale risks allowing States to second-guess any federal policy that has some downstream effect on States. Such a theory could invite States to attempt to challenge grants of probation or supervised release for convicted criminals, or federal actions that result in individuals moving from one State to another, or indeed any federal policy that could trigger some service provided by state law. Article III provides no support for such a boundless theory of standing.

The limiting principle is a version of the slippery slope argument–if we allow standing here, then why won’t we allow standing in case X. It is a powerful legal argument that nearly defined the constitutional challenge to Obamacare. Here, the biggest challenge for Texas is not the merits, but why permitting “driver’s license standing” here will not drastically alter the power of states to challenge federal actions. I think there are several possible answers to this question.

First, the initial limiting principle concerns the linkage between the challenged non-enforcement and the claimed injury. The injury asserted by Texas is “fairly traceable to the challenged action,” the government’s non-enforcement. Under Texas law, an alien who is granted the status of deferred action is entitled to a driver’s license, which generates fixed costs for the state. The decision of the United States to grant this lawful status can be considered as  the proximate cause of the injury to Texas. But for the government’s adjustment of the alien’s status, Texas would not be required to offer a driver’s license. The response to this claim is, so what? The federal government adjusts the status of millions of aliens annually, rendering them all eligible for Texas’s driver’s licenses. And all federal policies impact state law, right?

Second, contrary to the government’s assertion, it isn’t true that “any federal policy that could trigger some service provided by state law,” could provide standing under Texas’s theory. Other than immigration, the government musters up a fairly unpersuasive parade of horribles of actions that could trigger standing: “grants of probation or supervised release for convicted criminals, or federal actions that result in individuals moving from one State to another, or indeed any federal policy that could trigger some service provided by state law.” None of these actions fit the mold. The decision of an Article III judge to grant probation, and release a criminal into a community is entirely at odds with the challenged non-enforcement of federal law. Any resulting costs to the state from supervised release of a criminal are attributed to Article III, not Article II. The government also cites “federal actions that result in individuals moving from one State to another” as a possible trigger. I don’t even know what that one means. The Article IV “Privileges or Immunities” clause guarantees movements between states. States cannot discriminate against out-of-staters.

In addition to immigration status, I think veterans status may trigger some benefits under state law. Any others? I think the category is fairly finite. Usually it works the other way around–a change in state status affects some sort of federal benefit. So this slope is not quite as high and steep as the government suggests.

Third, it is important to separate the aggrieved injury for purposes of standing, and the constitutional violation. In virtually every scenario where Texas provides a driver’s license to an alien with some lawful status, the underlying granting of that status was unquestionably lawful. The mere fact that Texas suffered an injury through fixed costs does not provide a substantive cause of action. The cost of providing the driver’s license served as a concrete injury to get into court for purposes of standing. Once there is standing, the plaintiff still must plead *some* cause of action. What will those causes of action be? To the point I made in the previous paragraph, what would the cause of action be when a judge releases a defendant on supervised release? None.

The mere fact that federal inaction inflicts an injury on the state does not mean the government acted unconstitutionally, or contrary to law.  Although state attorneys general are elected positions that relish in suing the federal government (remember Massachusetts v. EPA?), filing a frivolous claim–even with some injury–will quickly be turned away out of court. I suppose that State AGs could continue to file pointless suits based on “driver’s license” standing, but they would be promptly tossed. In this sense, the limiting principle is that the overwhelming majority of instances where inaction creates an injury, will be perfectly lawful. (And by now, you should recognize that Texas’s challenge is not frivolous).

Fourth, a related arguments is that states could pass laws in order to generate standing.  There is certainly a threat that a state could pass a law, knowing full well that some federal policy will conflict with it, in an effort to generate standing. Virginia attempted something like this in 2010, where it enacted a law stating that any federal law that imposed an insurance mandate would trigger an injury which the Commonwealth could challenge in court (I am grossly oversimplifying here). The courts correctly rejected this argument, which bordered on a parens patriae theory of standing, where the state steps to defend the rights of the individual. Here, Texas is not attempting to protect the rights of individuals, but defending an injury it suffers in its sovereign capacity.

Further, the government asserts that the Texas law results in a “self-inflicted injury,” as Texas could change the law to avoid this injury. I think this argument fails for two reasons. First Arizona, which had a similar license regime, attempted to change its law to disqualify DACA beneficiaries from receiving a license. The DOJ intervened, and argued that this classification was unlawful. Now, DOJ has attempted to dial this argument back, and argue that Texas could exempt DAPA beneficiaries, if they do so in a lawful manner. Color me skeptical. Even if this is true–doubtful–several of the party states in this suit are in the 9th Circuit, and are bound by that precedent, so this argument is somewhat unhelpful. In any event, this law existed well before DAPA and DACA, and there can be no argument that Texas colluded to generate standing. Second, I think it would be a radical argument that a state should be required to change its laws in order to avoid an injury from an executive action (that is arguably itself unlawful). Legislation and the police power are the ultimate attribute of sovereignty, and states should and could not be compelled to act in order to prevent a collision with a President’s policies.

Fifth, these cases are going to be very rare. The most common example where local governments will claim to be injured by inaction involve situations where the Executive did not give them the money they were due. In Train v. City of New York, the city sued the Nixon Administration for failing to disburse funds allocated by Congress. In Clinton v. City of New York, the Big Apple sued President Clinton for exercising his line-item veto and not funding local projects. But never before has a state (to my knowledge at least), filed suits alleging a violation of the President’s duty of faithful execution, where a state didn’t expect money. The fact that no state has ever attempted a suit on the scale of Texas’s is unprecedented in and of it self, but also a reflection of how unprecedented DAPA was (as recognized by the OLC memo).

Sixth, another aspect of our standing jurisprudence is that the injury must be “redressable.” This is an important limitation on suits alleging non-enforcement. With respect to the House of Representative’s suit against the Secretary of HHS for failing to enforce the employer mandate, one of the biggest obstacles is redressability. Let’s assume the court finds that the Take Care clause was violated, and the Secretary of HHS failed to discharge his constitutional duty. Then what? Do we have a court order, ordering the Secretary to implement the employer mandate? Would this take the form of mandamus? This hypothetical gives me serious doubts that standing would be appropriate in that case. But in the case of Texas, the scope of relief is really, really narrow. The court would not order the President to do anything! There would be no forced deportations. (Judge Hanen  made this point clear during the stay hearing–the government can engage in the prioritization of removal in the absence of DAPA). Rather, the November 24, 2014 memorandum would be enjoined, and the ex ante status quo would be restored. Then, no licenses would be issued. That’s it. Here, redressability is quite simple, and makes the case for standing stronger.

Seventh, from a policy perspective, suits over injuries to states from non-enforcement may reinforce the separation of powers, rather than frustrate them. Consider Heckler v. Cheney, the canonical non-enforcement case. Here the death row inmate claimed an injury from failing to enforce drug and safety laws for his lethal injection. Although the court found that the policy was non-reviewable under the APA, there was no suggestion that the prisoner lacked a concrete interest for purposes of Article III–he was to be executed with the drugs. In virtually every scenario where the government takes some action, even a related non-enforcement will cause a harmful injury to someone, and that party will have standing.

DAPA presents a different scenario. Rather than the non-enforcement of the law inflicting a harm on individuals–such as Cheney–DAPA provides a benefit. The millions of DAPA beneficiaries stand to gain quasi-lawful presence, work authorization, the earned income tax credit, social security, etc. Not a single individual who is affected positively by this non-enforcement would bring suit.  A similar dynamic applies to other instances of non-enforcement, such as the failure to enforce Obamacare’s individual and employer mandates. Businesses and individuals who are exempted from the payment of penalties will not bring suit. This is the dirty little secret of the Obama Non-Enforcement Doctrine–it’s okay to disregard the law when no one is injured, as the inaction is insulated from judicial review.

I’ve written in several places how this non-enforcement poses an existential threat to the rule of law. In the era of gridlock and non-enforcement, where Presidents can pick and choose what laws they like, and those non-enforcements do inflict injuries on injuries, these challenges can reaffirm the separation of powers, where Congress refuses to. In an article (at some point) I would like to write about the role of State Attorneys General, supporting the “special solicitude” of the states, in bolstering federalism. This Texas suit may be an important development in the doctrine.

These thoughts are still tentative, and I will develop them further. But any challenge here will have to be able to answer the “limiting principle” question.

On March 19, the Creighton Law School Federalist Society Chapter hosted me for a discussion on 3D-Printed Guns and the Constitution. Here is the audio.

On Thursday, April 2, the NYU Federalist Society Chapter hosted me for a discussion on 3D-Printed Guns and the Constitution. Here is the audio.

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.

 

 

On Thursday, April 2, the Brooklyn Law School Federalist Society Chapter hosted me for a discussion on 3D-Printed guns and the Constitution. My good friend Professor Bill Araiza was kind enough to provide comments. Here is audio of the event.