Immigration and the Scope of Presidential Power (Round One)

February 18th, 2015

Over the next few years we’ll all learn the lawful extent of a president’s power through various court decisions because President Obama is investing his final term in office testing the limits of that power.

This week’s ruling by United States District Judge Andrew S. Hanen granting a temporary injunction against implementation of President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program is one such case and marks the beginning of what hopefully will be an education for both the public and Obama himself as to how our statutory and regulatory system should work.

As this matter proceeds through the courts, you’ll hear several different buzz words and titles that are important.  Here’s a roadmap of what to look for when following this through the courts.

Let’s begin with the basics.  The matter before the court was brought by twenty-six states and seeks to block implementation of DAPA on the grounds that the program will cost the states lots of money and resources.  For example, the simple act of processing driver’s license applications under this program would cost millions of state taxpayer dollars.

Texas took the lead and filed the case in federal district court in Brownsville, Texas.  An attorney supporting the Obama administration calls this move “clever.” If you listen to pundits on the left, they’ll lead you to believe that the plaintiffs in this case pulled a fast one by approaching the only judge in America who would support their position.

The fact that states can demonstrate the economic impact of DAPA on their states is important because, as you’re going to hear pundits say in the next few days, immigration is a federal matter and states have no say in it.  Therefore, the logic goes, states don’t have standing to bring a lawsuit challenging a federal act and thus they have no standing here.

Generally, this is true.  Immigration is a federal matter.  It makes sense when you think about it.  Chaos would abound (even more than it already has) if all fifty states had different rules for who is and isn’t permitted to be in the United States and for how long.  So to the degree we’re talking about basic rules of entry, exit, and deportation, clearly that’s a federal matter.

As this lawsuit states, however, that’s not what we’re talking about here.  In this case, the court is being asked to consider the economic impact of the president’s actions on the states.  If he has no statutory basis for this program and hasn’t followed the appropriate method for developing rules and regulations governing the program then it shouldn’t go forward.

Frequently, you’ll hear the Obama administration say that the president has the authority to set priorities in carrying out his duties to enforce the immigration laws. For example, he can elect to put more resources towards deporting individuals who’ve committed crimes instead of those who’ve worked and lived in the United States without incident.  A president’s commitment to vigorously enforcing deportation laws or letting “folks” slide explains statistics on actual deportations at the end of any presidential term. 

What the president can’t do however is confer additional benefits not already clearly written in the law except in very limited circumstances and even that’s questionable because the times it has happened historically haven’t been tested fully in the courts.

For example, Obama’s program would not only allow certain individuals to remain in the United States without fear of deportation but it would also allow them to receive work permits and driver’s licenses among other benefits.  While Obama argues one of the requirements will be the payment of back taxes, some argue that in fact in the end the government will write checks to the undocumented alien applicant in the form of tax credits. No matter which side you’re on in this matter there is no doubt this is an expensive program.

Here’s how Judge Hanen characterized the administration’s action: “The Department of Homeland Security has adopted a new rule that substantially changes both the status and employability of millions.  These changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.”  Judge Hanen stopped implementation of the program pending a legal review because he duly noted that once these benefits are conferred upon an estimated five million people “[t]he genie would be impossible to put back into the bottle.” Thus, even if the plaintiffs in this case ultimately win, they will for all practical purposes lose.

And what if it’s determined that Obama is able to confer some legal status on these individuals?  Is that the end of the story? Not necessarily.  This is where a very important law comes into play.  It’s called the Administrative Procedures Act (“APA”).  This law spells out exactly how rules and regulations are written to implement laws passed by Congress.  It’s certainly not perfect, but it’s at least a reliable guide on how rules and regulations are developed, debated, and implemented.

For example, let’s say Congress passes a law that says everyone in the country for six months gets a box of fruit and vegetables from the federal government.  That’s a pretty general requirement.  In accordance with the APA, agencies necessary to carrying out this legal requirement would immediately begin promulgating rules and regulations governing how this requirement would be met.  Each rule necessary to carry out the requirements of the law wouldn’t just be sent out as an edict.  Instead, it would be issued as a proposed rule with a period of time given for interested parties to comment on the proposal.  This gives the agency an opportunity to consider the pitfalls in the rule. For example, will it cost too much? Does it lead to unintended consequences?  The rule will possibly go through a few comment periods before a final rule is issued.  The idea behind this whole process is to give everyone affected an opportunity to give their ideas about how to improve the rule or possibly even kill it.  The end product is (in theory) a carefully crafted rule that works best in most instances.

Judge Hanen’s chief legal argument is that the Department of Homeland Security didn’t follow the APA in crafting all the different rules and requirements of Obama’s proposed program.  Perhaps if they did they would discover, for example, that the program will unduly financially burden states trying to implement it or cost the U.S. Treasury more than the country can really afford.

All of this presumes that there is a legal basis for the Obama administration to even implement such a program in the first place. Much of what he’s implementing isn’t even in the law since it in effect grants a legal status to a group who likely doesn’t work in an area for which a visa is available in the first place.

So while you’ll hear over the next several days how this entire legal matter is simply a “bump in the road” and that the plaintiff states have no legal leg to stand on, don’t be so sure.  There is certainly more to come and as Eric Holder himself acknowledged yesterday this all will likely be decided by a higher court, perhaps the Supreme Court itself.


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