The second aspect of the Fifth Circuit’s decision in Texas v. United States analyzes whether the action taken by DHS is reviewable–specifically whether “judicial review could be available if there is an indication that deferred-action decisions are not made on a case-by-case basis.” The court concluded that this case is reviewable because “the government has not rebutted the strong presumption of reviewability with clear and convincing evidence that, inter alia, it is making case-by-case decisions here.”

Because this is not simply a case of non-enforcement–under the umbrella of discretion–but action by the Secretary, there is a focus for judicial review.

Part of DAPA involves the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low- priority illegal aliens. But importantly, the states have not challenged the priority levels he has established,98 and neither the preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities.

This is the key analysis, and represents one of the most misunderstood aspects of the case. No one has challenged the Secretary’s prioritization of aliens. Deferred Action is not simply nonenforcement, but is much more:

Deferred action, however, is much more than nonenforcement: It would affirmatively confer “lawful presence” and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act99—and state benefits—for example, driver’s licenses and unemployment insurance100—that would not otherwise be available to illegal aliens.101

It is the collateral consequences of deferred action that distinguishes it from merely choosing not to remove an alien.

The government counters that “lawful presence” is not a status,  but is entirely revokable at will, and is not something aliens can “legally enforce.” The court rejects this argument, and finds that because deferred action, at a minimum, “remov[es] a categorical bar on receipt of those benefits,” it “thereby mak[es] a class of persons newly eligible for them,” and citing Heckler v. Chaney, “provides a focus for judicial review.”

Under DAPA, “[d]eferred action . . . means that, for a specified period of time, an individual is permitted to be lawfully present in the United States,”107 a change in designation that confers eligibility for substantial federal and state benefits on a class of otherwise ineligible aliens. Thus, DAPA “provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.”

In a footnote, the court stresses that they do not reach the issue of whether there has been an abdication under Adams v. Richardson, which was cited in Heckler v. Cheney:

Because the challenged portion of DAPA’s deferred-action program is not an exercise of enforcement discretion, we do not reach the issue of whether the presumption against review of such discretion is rebutted. See id. at 832–34; Adams v. Richardson, 480 F.2d 1159, 1161–62 (D.C. Cir. 1973) (en banc) (per curiam).

I don’t entirely understand this footnote, but will come back to it later.

Further rejecting the notion that DAPA is non-enforcement of the law, the court characterizes it as “affirmative agency action.”

But where there is affirmative agency action—as with DAPA’s issu- ance of lawful presence and employment authorization—and in light of the INA’s intricate regulatory scheme for changing immigration classifications and issuing employment authorization,110 “[t]he action at least can be reviewed to determine whether the agency exceeded its statutory powers.”

But what about the government’s argument that “8 C.F.R. § 274a.12(c)(14),111 rather than DAPA, makes aliens granted deferred action eligible for work authorizations”? The court replies:

But if DAPA’s deferred-action program must be subjected to notice-and- comment, then work authorizations may not be validly issued pursuant to that subsectionuntil that process has been completed and aliens have been “granted deferred action.”

In other words, it is true that work authorization is permitted after an alien has been “granted deferred action.” But if DAPA cannot be used to afford aliens deferred action until after notice-and-comment, then work authorizations are premature. This argument is a bit circular, and I will revisit it later.

The second argument, and in my opinion stronger one, is the government’s argument about the work authorization stretches the INA beyond any conceivable bounds.

Moreover, the government’s limitless reading of that subsection— allowing for the issuance of employment authorizations to any class of illegal Moreover, the government’s limitless reading of that subsection— allowing for the issuance of employment authorizations to any class of illegal … The class of aliens eligible for DAPA is not among those classes of aliens identified by Congress as eligible for deferred action and work authorization.

At bottom, “Neither the preliminary injunction nor compliance with the APA requires the Secretary to enforce the immigration laws or change his priorities for removal, which have expressly not been challenged.”

At its core, this case is about the Secretary’s decision to change the immi- gration classification of millions of illegal aliens on a class-wide basis. The states properly maintain that DAPA’s grant of lawful presence and accompany- ing eligibility for benefits is a substantive rule that must go through notice and comment, before it imposes substantial costs on them, and that DAPA is sub- stantively contrary to law. The federal courts are fully capable of adjudicating those disputes.

In a lengthy footnote, the majority responds to several arguments made by the dissent that this is Congress’s fault for not enacting any immigration legislation.

The main thrust of the dissent could be summarized as claiming that “[i]t’s Con- gress’s fault.” The President apparently agrees: As explained by the district court, “it was the failure of Congress to enact such a program that prompted [the President] . . . to ‘change the law.’” See infra note 200. The dissent opens by blaming Congress for insufficient funding―to-wit, “decades of congressional appropriations decisions, which require DHS . . . to de-prioritize millions of removable each year due to these resource constraints.” Dissent at 5–6 (footnote omitted).

The majority explains that this reasoning, which it describes as “commentary on political decisions,” highlights the weaknesses of the government’s position.

The facts, not commentary on political decisions, are what should matter. Thus the dissent’s notion that “this case essentially boils down to a policy dispute,” Dissent at 22, far misses the mark and avoids having to tackle the hard reality―for the government―of existing law.

In my next post, I will address the court’s analysis of whether Texas is likely to succeed on their claim that DAPA must be submitted for notice-and-comment.