DAPA Ends With A Whimper, Nevertheless, DACA Persisted

June 17th, 2017

President Obama’s two executive actions on immigrations have taken more twists and turns than I could have ever fathomed.

In November 2014, shortly after the midterm elections, President Obama announced that within 90 days, his administration would implement DAPA. This policy would grant “lawful presence” to, and defer the deportation of, roughly four million parents of U.S. citizens and lawful permanent residents. Within two weeks, Texas Attorney General (and now Governor) Greg Abbott filed suit in the Southern District of Texas in Brownsville, seeking a nationwide injunction to bar enforcement of DAPA. (I filed an Amicus Brief on behalf of the Cato Institute in support of that case, based on my work on the Take Care Clause). The district court entered the injunction, and the 5th Circuit denied a stay. Rather than seeking an emergency stay in the Supreme Court, the government went back to the 5th Circuit for a ruling on the merits. Again, the government lost, and quickly filed a petition for certiorari. It was granted with 9 Justices on the bench, but argued with only 8. At the end of the tumultuous October 2015 Term, the Court affirmed the 5th Circuit by a 4-4 margin. (Justice Scalia would almost certainly have cast the 5th vote to strike down the policy).

That decision gave Texas a victory, but one that I anticipated would be temporary. Immigrant rights groups soon filed suits in other districts, trying to gin up a circuit split about DAPA, with the hope to get it back to the Supreme Court where a 9th Justice, appointed by President Hillary Clinton, would be in a position to uphold the policy. That is certainly what I expected to happen. I viewed the 4-4 affirmance as merely delaying the inevitable. But then November 8 happened. Donald J. Trump won the election. And, in one of this first acts, appointed Neil Gorsuch as the 9th Justice. Were DAPA to get back to the Supreme Court, it would not likely find a 5th vote for its survival. But the policy would never see a judicial resolution again.

On January 19, 2017, the outgoing Obama Administration and now-Texas AG Ken Paxton asked the District Court in Brownsville for more time to consider the litigation. In March, the parties asked for more time. The court agreed, setting a June 15 deadline. I had that date marked off on my calendar. I suspected that the parties would simply punt again, asking for more time. Much to my surprise, late Thursday night, I received an ECF notification from the case, indicating that DAPA had been revoked! I was shocked, even though I knew this was coming, eventually.

It was at bottom a aictory for Texas! Their timely lawsuit prevented a lawless policy from ever going into effect. And due to the confluence of political outcomes that were completely unimaginable in 2014, it will never go into effect. Nevertheless, the victory was bittersweet. My hope was that the Trump Administration would not only revoke DAPA, but announce that it was illegal, as all the GOP candidates would say over and over and over again, referring to it (erroneously) as “illegal executive amnesty.” The 2014 DAPA OLC Opinion should have been tossed to DOJ’s ash heap. Secretary Kelly’s memo, however, came far, far short of that, offering these reasons for revocation:

I have considered a number of factors, including the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities. After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum.

To paraphrase T.S. Elliott, this is the way DAPA ends. Not with a bang, but a whimper.

Why did the government not announce that DAPA was illegal? Because, in another unexpected twist and turn, President Trump has decided to keep DACA on the books. DACA is the President’s 2012 executive action that deferred the deportations of, and granted work authorization (but not “lawful presence”) to about two million “Dreamers.” From press accounts, President Trump feels sympathy for the Dreamers, and does not want to harm them. If that is truly his belief, then the President should support the Dream Act, and grant these worthy individuals permanent legal status. This is a legislative proposal that I have always supported, wholeheartedly. Instead, the President and his administration have continued to implement this lawless policy. And, as I’ve noted may times over the past few years, DACA is even more lawless than DAPA. While DAPA requires that the applicant be the parent of a U.S. Citizen, DACA does not require any familial relation to a U.S. Citizen. A cryptic footnote in the OLC opinion announcing DAPA referenced the unique humanitarian concerns attending to the Dreamers. Nonetheless, as far as immigration law works, the case for deferred action is even weaker for those without any connection to citizens. So here we are.

President Trump has eliminated DAPA, a policy that never went into effect because of Texas’s lawsuit, but has not revoked DACA, a policy that is less defensible from a legal perspective. Moreover, not only has the President not revoked DAPA, he has continued to issue new licenses at roughly the same rate as his predecessor! This outcome is something I could have never conceived of during the campaign.

Though the litigation over DAPA will soon wind to an end, the litigation over DACA continues. On June 22, the Supreme Court will consider at conference Arizona’s petition for certiorari in Brewer v. Arizona Dream Act Coalition. (Yes, the same conference when the Court will consider IRAP v. Trump and Hawaii v. Trump). This case was not a direct challenge to DACA, but instead arose after Arizona passed a law to bar DACA recipients from receiving drivers licenses. The 9th Circuit held that President Obama’s non-enforcement policy preempts state law.

As Arizona explains its petition for certiorari, a discretionary policy announced in an executive-branch memo cannot preempt state law under the Supremacy Clause:

A discretionary, revocable program of non- enforcement, which was created by executive action alone, cannot preempt state law regulating driver’s licenses. Even the Ninth Circuit acknowledges that granting licenses is a traditional police power. App. 36. Where police powers are involved, this Court requires that Congress supply “clear and manifest” evidence of its intent to preempt state law. Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 330 (1947)). The two statutory provisions identified by the Ninth Circuit as evidence of congressional intent are inadequate, which explains why that court rejected the “clear and manifest” standard entirely. App. 35; see also App. 6 (Kozinski, J., dissenting). The Ninth Circuit’s rejection of the “clear and manifest” standard is a departure from 70 years of this Court’s preemption jurisprudence. To protect the sovereignty of the States, this Court should grant review.

Additionally, the Ninth Circuit never explains how the DACA program can be federal law. The Constitution assigns authority over immigration to Congress. U.S. Const. art. I, § 8, cl. 4. Unlike the demanding test for preemption, the separation of powers requires only that Congress has exercised its Article I authority to regulate immigration—including sanctioning certain types of deferred action and assigning them unique EADs—to strip the President of power to create new law in this area. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). The separation of powers thus forecloses any argument that the DACA Memo or EADs issued under DACA carry the force of law for purposes of the Supremacy Clause. Alden v. Maine, 527 U.S. 706, 731 (1999) (“[T]he Supremacy Clause enshrines as ‘the supreme Law of the Land’ only those Federal Acts that accord with the constitutional design.”).

Texas filed an amicus brief on behalf of a number of other states, stating the far more important proposition: because DACA is illegal, it cannot possibly preempt state law. This argument largely piggybacks on Texas’s successful argument to the 5th Circuit concerning DAPA’s legality. State SG Keller explains:

DACA, or “Deferred Action for Childhood Arri- vals,” is unlawful. It thus cannot be part of the “supreme Law of the Land” preempting state laws. U.S. Const. art. VI, cl. 2. DACA is unlawful executive action for essentially the same reasons that a materially identical executive action expanding DACA has been held unlawful—it affirmatively grants lawful presence and work authorization in violation of Congress’s intricate statutory framework for determining when an alien may lawfully be present and work in the country. Tex- as, 809 F.3d at 146. The Ninth Circuit erred by effectively giving preemptive force to this unlawful executive action.

The chief defense of DACA has been that it is allegedly mere enforcement discretion—forbearing from de- porting certain aliens. See Pet. App. 44, 46 (C.A. amended op.); Pet. App. 190-91 (Office of Legal Counsel (OLC) memo); Pet. App. 197 (DACA memo); see also Texas, 809 F.3d at 174-78. That is wrong. “Lawful presence” is an immigration classification created by Congress with significant consequences. Likewise, Congress authorized only certain classes of aliens for work authorization. Yet DACA deems hundreds of thousands of unlawfully present aliens as lawfully present and eligible for work authorization. See Pet. App. 199 (DACA memo); infra Part I.A-I.B. This affirmative change in classification far exceeds enforcement discretion.

Texas is exactly right. An illegal policy cannot preempt state law. To determine if there is preemption, courts must first pass on the lawfulness of the memo. One small quibble: the DACA memorandum does not bestow “lawful presence,” but subsequent FAQ documents from DHS indicated that it does. Secretary Kelly’s memo, however, does reaffirm that an individual’s DACA can be rescinded at any time.

I have long hoped that the Supreme Court calls for the views of the Solicitor General on this case. The government should assert, once and for all, that an executive-branch memorandum (of dubious legality) can preempt state law. This will put the SG’s office in a tight spot, but I’m sure they’ll find a way to duck the issue. (Much like with the CVSG concerning President Obama’s non-enforcement of controlled substance laws).

There is another case that implicates DACA’s legality arising out of state court. Last week, the Iowa Supreme Court divided 4-3, holding that a DACA recipient cannot be “prosecuted by State authorities for using false documents to obtain federal employment authorization even though federal law pervasively regulates employment of undocumented noncitizens.”

The AP describes the facts:

Martha Martinez, who is now 31, obtained an Iowa driver’s license when she was 17 using a birth certificate and Social Security card borrowed from a woman named Diana Castaneda. She also used the fake credentials to obtain federal authorization to get a job in Muscatine at a company that provides sanitation services for food processing plants.

Martinez in 2013 received temporary lawful immigration status under the Deferred Action for Childhood Arrivals policy implemented under President Barack Obama. She was able to obtain a driver’s license under her real name and newly issued Social Security number provided through DACA.

However, the Iowa Department of Transportation, using facial recognition software, matched her face with the driver’s license she obtained at 17 using Castaneda’s credentials. After an investigation, Muscatine County Attorney Alan Ostergren charged her with the two felonies that upon conviction could get her deported.

This case presents similar issues to the Arizona Dream Act case: can a non-enforcement memorandum preempt state law? The majority observes:

Martinez filed a motion to dismiss. Citing Arizona v. United States, Martinez argued that federal law preempted her prosecution under the Iowa identity theft and forgery statutes, both on their face and as applied. 567 U.S. 387, ___, 132 S. Ct. 2492, 2510 (2012). The State resisted. The State distinguished Arizona, noting that in that case, the Arizona statute specifically criminalized failure to comply with federal alien registration requirements while the statutes under which Martinez was charged are independent of federal law. The district court denied the motion to dismiss. According to the court, the charges of identity theft and forgery were “state crimes independent of Defendant’s immigration status.” In prosecuting Martinez, the court stated, the State was not acting to enforce or attack federal immigration law. Therefore, Martinez’s prosecution was not preempted by federal law.

The majority specifically referenced the risks that DACA recipients face:

Further, Martinez stepped forward as part of a federal program, DACA. She provided relevant immigration authorities with information and was granted deferred status. Federal authorities might blanch at prosecuting a person who in good faith responded to their invitation to come out of the shadows for deferred action. See Brewer, 757 F.3d at 1063 (citing the practical effect of Arizona policy being DACA recipients were barred from working).

The state prosecutor in this case, however, seems to have a different philosophy and, as reflected in the charging decision to seek Martinez’s conviction on two felonies, exposed her to a significant Iowa prison term and removal from the country. If such local exercise of prosecutorial discretion were permitted, the harmonious system of federal immigration law related to unauthorized employment would literally be destroyed.

Justice Mansfield (who was on President Trump’s short list) dissented, jointed by two others, concluding that there was no preemption.

Although the majority tries to justify its decision based on field preemption and conflict preemption, neither doctrine can sustain its ruling. In the critical part of the majority opinion (i.e., the end of it where the actual legal analysis occurs), my colleagues quote cases out of context and paraphrase cases as saying things they don’t actually say.

More importantly, Justice Mansfield picked up on Judge Kozinski’s dissental in the Arizona Dream Act case– a non-enforcement memorandum does not constitute the “Supreme Law of the Land” under Article IV:

To put today’s decision into context, it is helpful to compare it to a recent decision of the United States Court of Appeals for the Ninth Circuit. Recently, the Ninth Circuit held that Arizona’s policy of denying drivers’ licenses to all persons protected by the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program was preempted by federal law. See Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 917 (9th Cir. 2016), amended by 855 F.3d 957 (9th Cir. 2017), petition for cert. filed, 85 U.S.L.W. 3471 (U.S. Mar. 29, 2017) (No. 16–1180). This has sparked disagreement. Dissenting from the denial of rehearing en banc, six judges of that court noted that DACA had not been approved by Congress but was just the President’s “commitment not to deport.” Ariz. Dream Act Coal., 855 F.3d at 958 (Kozinski, J., dissenting from the denial of rehearing en banc). They asked, “Does the Supremacy Clause nevertheless force Arizona to issue drivers’ licenses to the recipients of the President’s largesse?” Id. They characterized the Ninth Circuit panel opinion as relying on a “puzzling new preemption theory.” Id.

Mansfield notes that his colleagues’ decision goes much further than does the 9th Circuit, in that it finds preemption because the federal government has declined to prosecute someone for forgery:

Today’s decision goes much farther than that “puzzling” Ninth Circuit decision. Instead of giving the benefits of preemption to people whom the Obama Administration affirmatively exercised its discretion to protect, as the Ninth Circuit did in Arizona Dream Act Coalition, the court today gives the benefits of preemption to someone on whose behalf the Obama Administration declined to exercise its discretion—namely, a person who has committed identity fraud and forgery.

Thus, under DACA, state-law convictions for identity theft or forgery are disqualifying. Yet if the Department of Homeland Security did not believe state-law identity theft or forgery charges should prevent an unauthorized alien who arrived as a child from remaining in this country, it could have easily so provided in DACA. It did not. The court thus constructs a preemption theory today on behalf of someone whom the federal executive branch exercised its discretion to decline to protect.

Simply stated, the majority’s approach is not preemption under any cognizable legal doctrine. It is not field preemption. It is not conflict preemption. It is, at best, gestalt preemption.3

3In explaining the court’s theory of preemption, the first special concurrence analogizes this case to “state laws that indirectly interfere with the right to vote.” Such an analogy is off the mark. Citizens have a constitutional right to vote. Unauthorized aliens do not have a constitutional right to work in the United States under a false name.

I have heard mixed things about the Iowa AG seeking review in the Supreme Court. Perversely, under the present circumstances, liberals should be eager to have the Supreme Court hold that the President’s executive order cannot preempt state law. Such a decision would be very useful in the Sanctuary City context. Yes, federalism, goes both ways. In any event, if this case is appealed to the Supreme Court, the Justices would have another opportunity to review the legality of this program, which, has persisted far longer than I could have ever expected in a Trump Administration.