Texas v. U.S. Part IV – Substantive APA Claim

November 10th, 2015

Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. This part will analyze the substantive APA claim–a ground that the district court did not reach, but the Fifth Circuit deemed it an “an alternate and additional ground for affirming the injunction.”

As a threshold matter, the court finds that the Chevron framework is applicable, but Chevron deference is not warranted.

Chevron deference requires the courts to accept an agency’s reasonable construction of a statute as long as it is “not patently inconsistent with the statutory scheme.” Am. Air- lines, Inc. v. Dep’t of Transp., 202 F.3d 788, 813 (5th Cir. 2000). As explained below, we decide that, assuming Chevron deference does apply, DAPA is not a reasonable construction of the INA, because it is “manifestly contrary” to the INA statutory scheme.

Nor is Skidmore deference warranted:

n agency construction that is manifestly contrary to a statutory scheme could not be persuasive under the test in Skidmore v. Swift & Co., 323 U.S. 134 (1944), a test that affords agency constructions less deference than does Chevron.

Under Chevron, the Court first asks “if Congress has ‘directly addressed the precise question at issue.’” The 5th Circuit found that “it has.”

In specific and detailed provisions, the INA expressly and carefully pro- vides legal designations allowing defined classes of aliens to be lawfully present162 and confers eligibility for “discretionary relief allowing [aliens in deportation proceedings] to remain in the country.”163 Congress has also iden- tified narrow classes of aliens eligible for deferred action, including certain petitioners for immigration status under the Violence Against Women Act of 1994,164 immediate family members of lawful permanent residents (“LPRs”) killed by terrorism,165 and immediate family members of LPRs killed in combat and granted posthumous citizenship.166 Entirely absent from those specific classes is the group of 4.3 million illegal aliens who would be eligible for lawful presence under DAPA were it not enjoined.

This is a point I address in Part I–simply stated, Congress has created a very elaborate scheme for determine class-wide beneficiaries for lawful presence. In no sense, can the DAPA beneficiaries fall within this category.

The court also spells out an argument I made at length in Part I of how a non-citizen parent can have their status adjusted based on a citizen child.

Congress has enacted an intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status: In general, an applicant must (i) have a U.S. citizen child who is at least twenty- one years old, (ii) leave the United States, (iii) wait ten years, and then (iv) obtain one of the limited number of family-preference visas from a United States consulate.167 Although DAPA does not confer the full panoply of benefits that a visa gives, DAPA would allow illegal aliens to receive the benefits of lawful presence solely on account of their children’s immigration status with- out complying with any of the requirements, enumerated above, that Congress has deliberately imposed. DAPA requires only that prospective beneficiaries “have . . . a son or daughter who is a U.S. citizen or lawful permanent resident”—without regard to the age of the child—and there is no need to leave the United States or wait ten years168 or obtain a visa.169

As I note in Part I, this can be waived by the AG, there is an “extreme hardship” requirement–none exists for DAPA.

Although “[t]he Attorney General has sole discretion to waive [the ten-year reentry bar] in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” § 1182(a)(9)(B)(v) (emphasis added), there is no such provision for waiving the reentry bar for parents of U.S. citizen or LPR children.

Another point I also make in Part I, is that parents of LPRs can never receive an adjustment of status from their children.

Further, the INA does not contain a family-sponsorship process for parents of an LPR child,170 but DAPA allows a parent to derive lawful presence from his child’s LPR status.

In short, the Secretary’s discretion does not stretch so far:

Although the Secretary has discretion to make immigration decisions based on humani- tarian grounds, that discretion is conferred only for particular family relation- ships and specific forms of relief—none of which includes granting lawful pres- ence, on the basis of a child’s immigration status, to the class of aliens that would be eligible for DAPA.171

Further, by granting lawful presecence, and thus work authorization to four million aliens, the Secretary would thwart Congress’s goal of deterring illegal immigration, and the “displacement of workers in the United States.”

DAPA would dramatically increase the number of aliens eligible for work authoriza- tion, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.

I am positive this line will be taken out of context to suggest the court enjoined DAPA to save American jobs. Not even close.

Next, in a serious move, the court cites King v. Burwell–exactly the right precedent.

DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and “we must be guided to a degree by common sense as to the manner in which Con- gress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.”178 DAPA undoubtedly implicates “question[s] of deep ‘economic and political significance’ that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly.”179

In any event, DAPA is unreasonable, and “manifestly contrary” to the statute.

But assuming arguendo that Chevron applies and that Congress has not directly addressed the precise question at hand, we would still strike down DAPA as an unreasonable inter- pretation that is “manifestly contrary” to the INA.

Next, the court addresses several broad provisions of authority in the INA, citing UARG and Brown and Williamson:

Likewise, the broad grants of authority in 6 U.S.C. § 202(5),187 8 U.S.C. § 1103(a)(3),188 and 8 U.S.C. § 1103(g)(2)189 cannot reasonably be construed as assigning “decisions of vast ‘economic and political significance,’”190 such as DAPA, to an agency.191

190 Util. Air, 134 S. Ct. at 2444 (quoting Brown & Williamson, 529 U.S. at 159); accord id. (“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (citation omitted) (quoting Brown & Williamson, 529 U.S. at 159)).

The court didn’t address it directly, but this would raise distinct non-delegation doctrine challenges if there was such a broad, unbounded delegation.

Judge Smith addresses Judge King’s proffer to give DHS “leeway.”

The dissent urges the courts to give DHS leeway to craft rules regarding deferred action because of the scope of the problem of illegal immigration and the insufficiency of con- gressional funding. Dissent at 50. That is unpersuasive. “Regardless of how serious the problem an administrative agency seeks to address, . . . it may not exercise its authority ‘in a manner that is inconsistent with the administrative structure that Congress enacted into law.’” Brown & Williamson, 529 U.S. at 125 (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988)).

Further, because the argument fails at Chevron step 1, deference is unwarranted:

Because we conclude, at Chevron Step One, that Congress has directly addressed lawful presence and work authorizations through the INA’s unambiguously specific and intri- cate provisions, we find no reason to allow DHS such leeway. There is no room among those specific and intricate provisions for the Secretary to “exercise discretion in selecting a differ- ent threshold” for class-wide grants of lawful presence and work authorization under DAPA. Util. Air, 134 S. Ct. at 2446 n.8.

The court repeats that even if DAPA survived Step 1, it would still be contrary to the INA under Step 2, citing King, City of Arlington, and UARG

We merely apply the ordinary tools of statutory construction to conclude that Con- gress directly addressed, yet did not authorize, DAPA. See King, 135 S. Ct. at 2483 (noting that to determine whether Congress has expressed its intent, we “must read the words in their context and with a view to their place in the overall statutory scheme”; City of Arlington v. F.C.C., 133 S. Ct. 1863, 1868 (2013) (“First, applying the ordinary tools of statutory con- struction, the court must determine whether Congress has directly spoken to the precise question at issue.”); Util. Air, 134 S. Ct at 2441 (recognizing the “fundamental canon of stat- utory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). Now, even assuming the government had survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA under Step Two. See Chevron, 467 U.S. at 844; Mayo Found., 562 U.S. at 53.

This regime, the court finds is “an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.” The court concludes, “the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, includingwork authorization.”

The court turns to whether “historical practice” justifies this action:

Presumably because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that “does not, by itself, create power,”193

193 Medellin v. Texas, 552 U.S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654, 686 (1981)). But see NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) (“[T]he longstanding ‘practice of the government’ can inform our determination of ‘what the law is.’” (citation omitted) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); Mar- bury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))).

Next, the court embraces the key distinction that I advance in Part I–that previous instances of deferred action served as “bridges from one legal status to another.” (Though there is no citation, the most important word in the opinion is “Affirmed,” so I’ll take it).

Previous deferred-action pro- grams are not analogous to DAPA. “[M]ost . . . discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters,”194 but DAPA is not such a program. Likewise, many of the previous programs were bridges from one legal status to another,195  whereas DAPA awards lawful presence to persons who have never had a legal status196 and may never receive one.197

The footnote cites previous deferred action policies involving aliens protected by the Victims of Trafficking and Violence Protection Act, self-petitioners under VAWA, students affected by Huricane Katrina. These are the key examples cited in the OLC memorandum that do not support DAPA.

The court elaborates on the fact that DAPA beneficiaries “may never receive” legal status in a page-long footnote:

Throughout the dissent is the notion that DHS must pursue DAPA because Congress’s funding decisions have left the agency unable to deport as many illegal aliens as it would if funding were available. But the adequacy or insufficiency of legislative appropri- ations is not relevant to whether DHS has statutory authority to implement DAPA. Neither our nor the dissent’s reasoning hinges on the budgetary feasibility of a more thorough enforcement of the immigration laws; instead, our conclusion turns on whether the INA gives DHS the power to create and implement a sweeping class-wide rule changing the immigra- tion status of the affected aliens without full notice-and-comment rulemaking, especially where―as here―the directive is flatly contrary to the statutory text.

The court writes that DAP is unprecedented:

Nothing like DAPA, which alters the status of more than four million aliens, has ever been contemplated absent direct statutory authorization. In its OLC memorandum, the Department of Justice noted that “extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action.” Id. at *18 n.8. Deferred action may be a decades-old tool, but it has never been used to affect so many aliens and to do so for so expan- sive a period of time

The court next focuses on the “Family Fairness” program, explaining that it was “interstitial” to a statutory scheme.

Although the “Family Fairness” program did grant voluntary departure to family members of legalized aliens while they “wait[ed] for a visa preference number to become available for family members,” that program was interstitial to a statutory legalization scheme.198

In our Cato brief, we used the phrase “ancillary” to describe the “Family Fairness” program, but “interstitial” works as well.

The court next seizes on an important jurisprudential point–that Congress has expressly refused to pass the President’s preferred litigation, lest there be any doubt of what Congress thinks of providing benefits to the aliens in questions:

DAPA is far from interstitial: Congress  has repeatedly declined to enact the Development, Relief, and Education for Alien Minors Act (“DREAM Act”),199 features of which closely resemble DACAand DAPA. Historical practice that is so far afield from the challenged program sheds no light on the Secretary’s authority to implement DAPA. Indeed, as the district court recognized, the President explicitly stated that “it was the failure of Congress to enact such a program that prompted him . . . to ‘change the law.’”200 At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes. And the dissent attempts to avoid the impact of the President’s statement by accusing the district court and this panel majority of “relying . . . on selected excerpts of the President’s public statements.” Dissent at 24, 33 n.41.

The President’s remarks matter–and as we argue in our brief, inform the take-care-clause-challenge.

In summary, the program is “manifestly contrary to the statute.”

Through the INA’s specific and intricate provisions, “Congress has ‘dir- ectly addressed the precise question at issue.’” Mayo Found., 562 U.S. at 52. As we have indicated, the INA prescribes how parents may derive an immigra- tion classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization. DAPA is foreclosed by Congress’s careful plan; the program is “manifestly contrary to the statute”201 and therefore was properly enjoined.202


In a footnote at the end of this section, the court stresses:

We do not address whether single, ad hoc grants of deferred action made on a gen- uinely case-by-case basis are consistent with the INA; we conclude only that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a class- wide basis to 4.3 million otherwise removable aliens.