The Volokh Conspiracy
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A divided panel of the U.S. Court of Appeals for the Fifth Circuit has affirmed a federal district court's nationwide injunction against the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in Texas v. United States. Twenty-six states filed suit against the program on both procedural and substantive grounds. The Fifth Circuit's decision yesterday increases the likelihood that the lawfulness of DAPA will be resolved by the U.S. Supreme Court, perhaps even as early as next spring (depending on how the administration responds to the ruling).
In an extensive, 70-page ruling, Judge Jerry Smith (joined by Judge Jennifer Elrod) concluded that the states had standing to challenge DAPA and were likely to succeed on both their procedural and substantive claims. Among other things, Judge Smith concluded that DAPA is not authorized under existing law, nor is it justified by historical practice. In reaching this conclusion, Judge Smith cites King v. Burwell, among other recent Supreme Court decisions.
From the majority opinion:
DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and "we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency." DAPA undoubtedly implicates "question[s] of deep 'economic and political significance' that [are] central to this statutory scheme; had Congress wished to assign that decision to an agency, it surely would have done so expressly." [FN: King v. Burwell] But assuming arguendo that Chevron applies and that Congress has not directly addressed the precise question at hand, we would still strike down DAPA as an unreasonable interpretation that is "manifestly contrary" to the INA. . . .
The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States-an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility. Even with"special deference" to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.
Presumably because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that "does not, by itself, create power," and in any event, previous deferred-action programs are not analogous to DAPA. "[M]ost . . . discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters," but DAPA is not such a program. Likewise, many of the previous programs were bridges from one legal status to another, whereas DAPA awards lawful presence to persons who have never had a legal status and may never receive one. . . .
Historical practice that is so far afield from the challenged program sheds no light on the Secretary's authority to implement DAPA. Indeed, as the district court recognized, the President explicitly stated that "it was the failure of Congress to enact such a program that prompted him . . . to 'change the law.'" At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes. And the dissent attempts to avoid the impact of the President's statement by accusing the district court and this panel majority of "relying . . . on selected excerpts of the President's public statements." . . .
Through the INA's specific and intricate provisions, "Congress has 'directly addressed the precise question at issue.'" As we have indicated, the INA prescribes how parents may derive an immigration classification on the basis of their child's status and which classes of aliens can achieve deferred action and eligibility for work authorization. DAPA is foreclosed by Congress's careful plan; the program is "manifestly contrary to the statute" and therefore was properly enjoined.
Judge Carolyn King authored a 50-plus page dissent. Of note, Judge Smith refers to Judge King's opinion as "a careful dissent, with which we largely but respectfully disagree. It is well-researched, however, and bears a careful read." It is rare, yet refreshing, to see such a statement in an opinion.