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. Part V analyzes how the dissent frames DAPA. Part VI analyzes the dissent’s standing analysis. Part VII looks at the justiciability issue. Part VIII analyzes the dissent’s section on the APA Procedural Claim. Part IX looks at the dissent’s APA substantive claim section.
Judge King faults the majority for “stretch[ing] beyond the judgment of the district court” and finding that DAPA amounts to a substantive APA violation. The dissent characterizes the majority’s argument:
The argument that DAPA is a substantive APA violation, as I read it, appears to be the following: (1) DAPA is “manifestly contrary,” Majority Op. at 66, to the text of the INA and deserves no deference partly because Congress would not assign it such a “decision of vast ‘economic and political significance,’” id. at 62 (citation omitted); and (2) even if DHS deserved deference, DAPA is not a reasonable interpretation of the INA.
The dissent reject’s the majority argument that DAPA fails at step one because Congress has never “precisely prohibit[ed] or addresse[d] the kind of deferred action provided for under DAPA.”
Congress has never prohibited or limited ad hoc deferred action, which is no different than DAPA other than scale.58 In fact, each time Congress spoke to this general issue, it did so incidentally and as part of larger statutes not concerned
On the issue of scale, the dissent has a lengthy footnote on the “scope” of DAPA:
The majority makes much of the scope of DAPA in concluding that it violates the APA. See Majority Op. at 56, 59. Yet the conclusions regarding DAPA’s legality are similarly applicable to ad hoc deferred action. Ad hoc deferred action triggers the same eligibility for benefits and Congress has not directly mentioned it by statute. It should follow then that ad hoc deferred action is also not authorized by the INA and is a substantive APA violation. But this cannot be the case for the reasons mentioned below. Despite the majority’s emphasis on the scale of DAPA, its size plays no role in whether or not it is authorized by statute. I am aware of no principle that makes scale relevant in this analysis, and the majority does not cite any authority otherwise. The question of whether an agency has violated its governing statute does not change if its actions affect one person or “4.3 million” persons. Id. at 56.
This isn’t quite right. Even the OLC Opinion distinguishes between the “ad-hoc” and “class-wide” grants of deferred action.
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.
Further, ad hoc grants do not suffer from the same discretion-problems, as each application is indeed purely discretionary.
But what about the specific stumbling blocks that Congress has placed for the parents of U.S. citizens to receive an adjustment of status? The dismiss explains those are not clear statements, and are not enough to rebut the presumption.
The majority makes a similar mistake with respect to the work authorization regulation, 8 C.F.R. § 274a.12(c)(14). The majority holds that this regulation as “to any class of illegal aliens whom DHS declines to remove– is beyond the scope of what the INA can reasonably be interpreted to authorize.” Majority Op. at 40. It bases its conclusion on provisions of the INA that specify classes of aliens eligible and ineligible for work authorization and scattered statements from past cases supposedly stating that Congress restricted immigration to preserve jobs from American workers. Yet, much like with deferred action, Congress has never directly spoken to the question at issue and, if anything, has indirectly approved of it. … Had Congress wanted to negate this regulation, it presumably would have done so expressly, but by specifying the categories of aliens eligible for work authorization, Congress signaled its implicit approval of this longstanding regulation.
The dissent next rebuts the King v. Burwell argument about “decisions of vast economic and political significance.”
The majority next holds that DAPA, fails Chevron step one because the INA’s broad grants of authority “cannot reasonably be construed as assigning [DHS] ‘decisions of vast economic and political significance,’ such as DAPA.” Majority Op. at 61–62 (footnote omitted). To the contrary, immigration decisions often have substantial economic and political significance. … And deferred action—whether ad hoc or through DAPA—is not an effort by DHS to “hide elephants in mouseholes,” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001), but rather “[a] principal feature of the removal system,” Arizona, 132 S. Ct. at 2499.
The majority’s reliance on King v. Burwell, 135 S. Ct. 2480 (2015), for its conclusion is misplaced. The Court in King held that it was unlikely Congress delegated a key reform of the ACA to the IRS—an agency not charged with implementing the ACA and with “no expertise in crafting health insurance policy.” Id. at 2489. By contrast, DHS is tasked with enforcement of the immigration laws, see, e.g., 6 U.S.C. § 202, and its substantial expertise in this area has been noted time and time again. …
It is hard to see how DAPA is unreasonable on the record before us. DAPA does not negate or conflict with any provision of the INA. See Whitman, 531 U.S. at 484. DHS has repeatedly asserted its right to engage in deferred action. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000) (concluding an agency was not entitled to deference where it previously disavowed its enforcement authority). And DAPA appears to further DHS’s mission of “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5).
That’s it for this 10-part series. Stay tuned to what happens next.