For all practical purposes, President Obama's effort to offer temporary legal status to about five million undocumented aliens is dead. And there is nothing else to blame excpet his own cynicism, chutzpah and incompetence.
A 5th Circuit Court three-judge panel this morning reaffirmed a previous decision by a Texas district judge blocking the administration from implementing DAPA (Deferred Action for Parents of Americans). This program would have required immigration authorities to "defer" deportation action against undocumented aliens with American-born children. Insead, if they had no previous criminal record, they would qualify for three-year work permits and driver's licenses – not green cards, mind you. There is no doubt that DAPA would have dramatically expanded the 2012 DACA (Deferred Action Against Childhood Arrivals) program, potentially offering relief to about half of the undocumented population.
As I have explained before, contrary to restrictionist rants, nothing about this executive order is unconstitutional or executive over reach. Why? Because Congress has multiple times handed the executive branch vast authority to set immigration enforcement priorities. And it makes complete sense in this case to do deportation triage and focus limited law enforcement resources on targeting criminal aliens who pose a threat to Americans rather than hard-working foreigners with families and children who make a living doing jobs that Americans won't.
And neither the 5th Circuit ruling nor the district court judge actually say anything about the constitutionality of the order. So what was their rap against it? Basically that — as the 26 state attorney generals that had brought the lawsuit claimed — the Obama administration had failed to abide by proper federal rulemaking requirements. Specifically, the administration did not comply with the Administrative Procedures Act by first publishing the proposed changes and giving them the force of regulation.
The process of complying with the APA, if the rule is considered an "emergency" rule is straightforward. An emergency rule can be made effective in 60 days. Non-emergency rules can take longer. But even if the administration had taken the longer, non-emergency route it would have taken no more time and would have proved far less uncertain than simply ignoring the requirement altogether and getting stuck in a legal quagmire.
So why did Obama not do things the right way? Two reasons:
One, according to Musings on Immigration, a blog run by immigration lawyers is that:
Obama does not think he has to, and by doing so he diminishes the "power" of the presidency. There is recent Supreme Court Precedent backing this position. In Perez v. Mortgage Bankers Association, the Supreme Court held that:
"The APA distinguishes between two types of rules: So-called "legislative rules" are issued through notice-and-comment rulemaking, and have the "force and effect of law," Chrysler Corp. v. Brown, 441 U. S. 281, 302–303. "Interpretive rules," by contrast, are "issued . . . to advise the public of the agency's construction of the statutes and rules which it administers," Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99, do not require notice-and comment rulemaking."
. . . .
Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures to amend or repeal that rule.
As such, the Obama administration may feel that DAPA and expanded DACA are "interpretive rules" that do not require APA compliance, and that by doing so he would eviscerate the administration's victory in Perez.
Two, vile politics, plain and simple: The Obama administration didn't want to offer relief to undocumented Latinos because doing so would have taken the issue off the table before the next elections and keeping it alive is much more advantageous for Democrats. It gives them a handy tool to demonize the GOP in the eyes of the Hispanics—and of course Republican presidential candidates, especially goofball Trump who is promising mass deportations, are only too happy to oblige.
Indeed, had the president been motivated purely by helping Hispanic families he would have actually issued this order before the last mid-term elections when he had time to follow all the procedural rules and resolve any legal battles before leaving office.
Now, however, there is no clear legal route available that wouldn't run out the clock on his presidency. The administration could appeal to the whole 5th Circuit Court but, regardless of the outcome, its decision would be appealed to the Supreme Court. It could skip that step and go directly to the Supreme Court. But getting the court to accept the case and issue a ruling by June would be a very tall order. It's not impossible the administration could pull it off, but its highly improbable. However, even if it gets a favorable Supreme Court ruling, its not clear that it will have time to implement the program in the six months Obama would have remaining in office.
So, in all likelihood, DAPA is dead – and all because of Obama's political cynicism.
(Incidentally, the 2-1 5th Circuit decision was entirely predictable. I noted back in February that this is exactly what would happen. Both the judges who ruled against the administration were Republican appointees and had refused to stay the disctrict judge's ruling and allow DAPA to be implemented while the legal battles were resolved. In their 135-page decision, they wrote that the judge's decision was "impressive and thorough.")