Texas v. U.S. Part VII – The Dissent on Justiciability

November 15th, 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. Part IV looked at the substantive APA claim. Part V analyzes how the dissent frames DAPA. Part VI analyzes the dissent’s standing analysis. This Part looks at justiciability.

Judge King’s dissent agreed with Judge Higginson’s dissent from the denial-of-stay action that this case is non-justiciable.

The dissent seeks to explain that both the Enforcement Priorities Memorandum (which the states do not challenge) and the DAPA Memorandum (which the state did challenge) are unreviewable.

Plaintiffs concede that if the DAPA Memorandum is only an exercise in enforcement discretion—without granting any “additional benefits”—it is unreviewable under 5 U.S.C. § 701(a). … Even the district court concluded that “decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch.” Dist. Ct. Op., 86 F. Supp. 3d at 645. But those are exactly the type of decisions the DAPA Memorandum contemplates. The Memorandum is a statement embodying the Secretary’s tentative decision, based on an assessment of the best uses of DHS’s limited resources and under his congressionally delegated authority to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), not to remove qualifying applicants for a certain period of time. In other words, deferred action itself is merely a brand of “presumptively unreviewable” prosecutorial discretion. 

The soul of DAPA depends on whether you accept, or reject this characterization. If both the Enforcement Priorities Memorandum, and the DAPA Memorandum accomplish the same goal of establishing priorities, than both are unreviewable. If deferred action, along with its interstitial benefits, is nothing more than prosecutorial discretion, then DAPA would not be subject to judicial review. But if–as Texas (and I) argue–that the DAPA memorandum does far more than merely set priorities, but indeed takes action that is contrary to the statutory regime, it is reviewable, and unlawful.


King adds that any benefits that are “triggered” by deferred action are not a result of the DAPA memorandum itself, but longstanding regulations.

To the extent the exercise of deferred action “trigger[s]” other benefits, those are not new or “associated” benefits contained within the DAPA Memorandum itself. Majority Op. at 35–36.19 Rather, those benefits are a function of statutes and regulations that were enacted by Congresses and administrations long past—statutes and regulations which, vitally, Plaintiffs do not challenge in this action. The ability to apply for work authorization, the benefit on which the district court most heavily relied, has been tied to deferred action by a federal regulation since the early 1980s. … It is this regulation, not the DAPA Memorandum, which affords those granted deferred action the ability to apply for work authorization. … The majority nevertheless states that § 274a.12(c)(14) as applied “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. This broad holding is very damaging to DHS’s immigration enforcement policy, which has operated, from time to time, on a class-wide basis. It stems from a deeply flawed reading of the INA that I discuss below. … Accordingly, DAPA itself grants no new rights or benefits. It merely announces guidelines for the granting of deferred action (which may trigger benefits under this framework of preexisting law) in an effort to “encourage [qualifying individuals] to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.”26 Appx. A, at 3. Even absent this announcement, the above benefits would attach to any grant of deferred action.

Judge King adds that “lawful presence” and “deferred action” are nothing more than an exercise of prosecutorial discretion:

Thus, “lawful presence” does not “confer[] legal status upon its recipients,” Dist. Ct. Op., 86 F. Supp. 3d at 637 n.45 (emphasis added), nor does it constitute “a change in designation,” Majority Op. at 38. Rather, both “lawful presence” and “deferred action” refer to nothing more than DHS’s tentative decision, revocable at any time, not to remove an individual for the time being—i.e., the decision to exercise prosecutorial discretion. Even the majority acknowledges that, at its core, “deferred action [is] a nonprosecution decision.” … That a prior statute or regulation ties a benefit to the exercise of prosecutorial discretion does not make that ordinarily unreviewable exercise of prosecutorial discretion reviewable or turn it into “affirmative agency action.”

Judge King next rejects that this policy amounts to an “abdication” under Heckler, citing the fact that the government has been removing people in “record numbers.”

Nor can it possibly be maintained that this exercise of prosecutorial discretion may be reviewed because DHS, which has been removing individuals from the United States in record numbers, “‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”

In a footnote, the court rejects the district court’s determination that the analysis should be cabined to those at issue with the memo:

In determining that DHS has adopted such a policy, the district court reasoned that “the Government here is ‘doing nothing to enforce’ the removal laws against a class of millions of individuals.” Dist. Ct. Op., 86 F. Supp. 3d at 663 (quoting Texas, 106 F.3d at 667). But by cabining its sample size only to DAPA-eligible individuals, and ignoring DHS’s record number of enforcement efforts against others, the district court’s conclusion was preordained. Under the district court’s logic, if DHS grants deferred action to ten individuals, it would have “abdicated its duty” to enforce the immigration laws as to those ten individuals— rendering that action reviewable. Reading Heckler’s narrow exception so broadly would swallow the general rule that “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” Heckler, 470 U.S. at 832. The majority does not appear to endorse this misrepresentation today.

Judge King’s analysis on justiciability is stronger than Judge Higginson’s, and will give the Solicitor General a footing for his cert petition.