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. Part IV looked at the substantive APA claim. This part begins to explore the dissent’s perspective on DAPA.

In Texas v. United States, I filed a brief on behalf of the Cato Institute and Jeremy Rabkin with Ilya Shapiro, Peter Margulies, and Leif Olson. The theme of our brief, simply stated, was “Don’t believe it.” Here is the first paragraph of our introduction:

The defense of DAPA requires a suspension of disbelief. As the government tells it, DAPA does nothing more than rejigger the Department of Homeland’s Security’s priorities to protect national security through humdrum exercises of prosecutorial discretion. Oh, and by the way, it incidentally creates a massive registration regime that offers work authorization to virtually all of the four million aliens that may apply. It’s all about conserving resources, the government insists, because it can’t deport everyone. There’s nothing to see here, the government claims, because Congress acquiesced to previous exercises of deferred action and sanctioned work authorizations for these aliens.

Don’t believe it.

Judge King’s dissent in Texas v. United States takes the exact opposite position–she believes all of it, however implausible.

First, Judge King notes that the policy will indeed be discretionary, and enforced on a case-by-case basis:

If the Memorandum is implemented in the truly discretionary, case-by-case manner it contemplates, it is not subject to the APA’s notice-and-comment requirements, and the injunction cannot stand.

If DACA was any indication, this cannot be the case, as the government was not able to identify a single instance where an application was denied for discretionary reasons beyond the Secretary’s guidelines.

Second, Judge King asks, but how can we extrapolate from DACA to DAPA, which hasn’t even gone into effect?

Although the very face of the Memorandum makes clear that it must be applied with such discretion, the district court concluded on its own—prior to DAPA’s implementation, based on improper burden-shifting, and without seeing the need even to hold an evidentiary hearing—that the Memorandum is a sham, a mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws as to over four million illegal aliens.”

Because this is a preliminary injunction, some extrapolation is necessary. Secretary Jeh Johnson, in establishing DAPA, “direct[ed] USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action.” A trial on the merits, after the injunction, would help establish a full enough record of how the policy would be implemented differently.

Third, Judge King writes that DAPA is a “quintessential exercise” of prosecutorial discretion:

Deferred action decisions, such as those contemplated by the DAPA Memorandum, are quintessential exercises of prosecutorial discretion.

Quintessential is defined as “representing the most perfect or typical example of a quality or class.” If indeed DAPA was “typical,” you would think the government could identify numerous examples of past practices of deferred action that are along the same lines. But they can’t. Each of the examples they cite served as a “bridge” between lawful statuses, or as ancillary to congressional reform. Nothing of this size or scope has ever been envisioned. I don’t think “quintessential” means what the dissent thinks it means. Even the OLC Opinion acknowledged that these sorts of policies varied from “ad-hoc grants of deferred action,” which are indeed quintessential:

We explained, however, 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.

Fourth, Judge King notes that this memo was written against the backdrop of limited resources:

It is important to recognize at the outset the backdrop upon which the Memorandum was written. As noted above, given the resource constraints faced by DHS, the agency is faced with important prioritization decisions as to which aliens should be the subject of removal proceedings.

There is another background, that is perhaps even more salient–the defeat of immigration reform in Congress. Within hours of learning that the bill was dead, the President announced that he would act alone: “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing…. [I will] fix as much of our immigration system as I can on my own, without Congress.” The policy was not announced till two weeks after the election, in a not-too-transparent effort to avoid political accountability for the decision.

Fifth, Judge King identifies “some direction” Congress gave to the Secretary of DHS:

Congress has given the Secretary some direction, in appropriations bills, as to how removal resources should be spent—by specifically devoting funding toward “identify[ing] aliens convicted of a crime who may be deportable, and . . . remov[ing] them from the United States once they are judged deportable,” and by making clear that the Secretary “shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Department of Homeland Security Appropriations Act, Pub. L. No. 114-4, 129 Stat 39, 43 (2015).

These are certainly “some” of the directions, but there are many other parts of the statute that are also salient. Specifically, that the specific category of aliens DAPA identifies are quite disfavored by the INA, which erects substantial burdens to their ability to apply for adjustment of status. (See my article in the Georgetown Law Journal Online for details). For example, parents of U.S. Citizens must wait up to 21-years, and leave the country for consular processing, before applying for an adjustment of status. Parents of Lawful Permanent Residents can never receive an adjustment of status based on their citizen-children. If King v. Burwell taught us anything, we must read statutes in context.

Sixth, Judge King writes DAPA does nothing more than divert resources from the lowest-priority aliens:

In an apparent effort to maximize the resources that can be devoted to such ends and consistent with his congressionally granted authority to set enforcement priorities, the Secretary contends that he has chosen—through the DACA and DAPA Memoranda—to divert some of DHS’s resources away from the lowest priority aliens to better enforce the immigration laws against the highest priority aliens.

This, in a nutshell is the framing of the issue I led this post off with. For reasons that orbit the constitutional valence of the case, scrutiny is indeed warranted. Don’t believe it. From our brief:

Instead of a modest application of prosecutorial discretion, DAPA is an unprecedented exercise of executive power in the face of congressional opposition. It conflicts with five decades of congressional policy as embodied in the Immigration and Naturalization Act (INA), and is inconsistent with previous exercises of deferred action. DAPA violates the President’s duty to take care that the laws are faithfully executed. As Justice Jackson recognized six decades ago, presidential lawmaking that lacks congressional support “must be scrutinized with caution.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring). Mirroring the Supreme Court’s precedents about reviewability for agency inaction, DAPA amounts to an “abdication” of the law with respect to its beneficiaries, and is an unconstitutional end-run around an uncooperative Congress. Allowing DAPA to proceed would set a dangerous precedent for the separation of powers and irreparably weaken both horizontal and vertical federalism.

I’ll have more on the dissent in a subsequent post.