Late on February 16, 2015, a federal judge in southern Texas issued a temporary injunction ordering the Obama administration to immediately halt implementation of its executive actions on immigration. While not entirely unexpected, the injunction does present a roadblock, albeit hopefully short-lived, to the many undocumented individuals expected to benefit from the President’s deferred action programs.
On November 20, 2014, the Department of Homeland Security (DHS) released a series of memoranda announcing new policies and programs relating to immigration enforcement priorities. The most controversial of these announcements related to an expansion of the Deferred Action for Childhood Arrivals (DACA) program and the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (also commonly referred to as Deferred Action for Parental Accountability, with the acronym “DAPA”). These programs permit DHS officers to exercise their discretion to provide individuals who meet certain criteria with temporary relief from deportation and three-year work permits.
Shortly after the announcement, a group of states filed a federal lawsuit in the Southern District of Texas, suing the administration for allegedly violating the U.S. Constitution. Led by the State of Texas, the case, known as Texas v. United States, was eventually joined by 25 other mostly Republican-led states.[i] These states alleged that the DAPA and expanded-DACA programs introduced in November violate the Constitution, as well as the Administrative Procedure Act (APA). In response, the federal government defended its actions by arguing that the states did not have standing to sue—in other words, that the states themselves would not be imminently harmed by the executive actions—as well as arguing against the states’ claims on their merits. Twelve Democrat-led states[ii] and the District of Columbia, as well as thirty Democrat city mayors, numerous immigrant advocacy organizations, and a number of law enforcement officials from around the country, filed amicus curiae, or “friend of the court,” briefs in support of the executive actions. Interestingly, the plaintiff states in this lawsuit are home to only approximately 38% of the population who could potentially benefit from these programs (and only 24% without Texas), while about half of the potential beneficiaries reside in the states siding with the administration.
District Court Judge Andrew S. Hanen issued an order of temporary injunction little more than 24 hours before DHS was to begin accepting applications for consideration under the expanded DACA guidelines on February 18, 2015. The order grants the plaintiff states’ motion for such an injunction, preventing the administration from “implementing any and all aspects or phases” of DAPA and the planned DACA expansion until he reaches a decision on the merits of the underlying case, or until an appellate court orders otherwise. In a separate 123-page opinion, Judge Hanen provided more detail on his decision.
In general, temporary injunctions allow courts to “preserve the status quo,” as Judge Hanen wrote, pending a full trial on the merits of a case. Without fully exploring the potential damages that all 26 plaintiff states would incur if the challenged programs were allowed to go into effect, the judge found that at least Texas would likely incur a “significant economic injury” in the form of the additional costs of issuing driver’s licenses to the programs’ beneficiaries. Having found that the states had standing to sue in the first place, Judge Hanen then went on to evaluate their allegations concerning the legality of the new programs.
While rightly emphasizing that his decision only addressed the request for an injunction, rather than constituting a final decision on the merits (which will not be issued for some time yet), Judge Hanen found that the Obama administration had violated the procedural requirements of the APA. This law requires federal agencies to provide notice of any proposed “rules” through publication in the Federal Register and the opportunity for interested parties to comment on the proposed rule. The Obama administration had argued that the challenged programs fell within an exception to the notice and comment requirement for rules that represent a “general statement of policy.” However, Judge Hanen found that the challenged programs are instead “substantive rules” which are subject to the notice and comment procedure because, he believes, they do not truly involve DHS officers’ discretion—while DHS Secretary Jeh Johnson certainly exercised discretion in the creation of the programs themselves, Judge Hanen found that adjudicating officers often “rubberstamp” applications and do not actually exercise discretion in individual cases. As such, these were “substantive rules” subject to the requirements of the APA, and because DHS did not provide notice or receive comments on these programs before beginning to implement them, Judge Hanen held that they are procedurally flawed.
The decision is disappointing in a number of ways. As advocates have pointed out, the judge chose to ignore the “overwhelming evidence of the economic benefits of immigration” in his discussion of the injuries that Texas was likely to suffer, instead focusing solely on the alleged costs associated with issuing driver’s licenses. In deciding that the deferred action programs were not sufficiently “discretionary,” he apparently ignored the many cases, discussed at length on immigration listservs and among immigration attorneys, of DACA cases that have been denied on purely discretionary grounds since that program first began in 2012. Additionally, the judge failed to recognize that existing federal regulations cover DACA and DAPA, providing for employment authorization for an “alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.”
Yet it is important to remember what this decision is and what it is not. Judge Hanen has issued an order for a preliminary injunction, which is now in place until he makes a final decision on the merits of the case (or until an appellate court reverses the injunction). Requests for injunctions are judged under a lower standard than the full merits of a case. As Judge Hanen wrote, this injunction merely “preserves the status quo” until he decides on the constitutionality or legality of these executive actions. Because there was not time for that before expanded-DACA applications began to be accepted on February 18, Judge Hanen felt compelled to issue this injunction, but as he himself wrote, “This Memorandum Opinion and Order does not rule on the substantive merits of DAPA’s legality.” Additionally, the order only affects DAPA and the expanded-DACA provisions announced last November 20; it does not have any effect on the DACA program originally announced in 2012 or on any of DHS’s other new enforcement priorities or policies.
Judge Hanen also noted multiple times in his opinion that many of the broader objections to Obama’s executive announcements, often made by Republicans, are not a good enough reason to halt the deferred action programs. As he wrote, “The general harms associated with illegal immigration [such as providing undocumented individuals with education and healthcare]…are harms that may be exacerbated by DAPA, but they are not immediately caused by it.”
Furthermore, this decision was not entirely unexpected. The plaintiff states specifically chose to file their lawsuit in his district because Judge Hanen is known for his anti-immigrant views. In December 2013, he used a court order in an unrelated case to publicly criticize the Obama administration for releasing a 10-year-old Salvadoran girl to her mother, in compliance with a federal court settlement agreement, instead of bringing criminal charges against the mother for human trafficking/smuggling, even though neither the mother nor the daughter were the subjects of the case at hand. Advocates were thus unsurprised by what many believe to be a politically-motivated decision.
The White House released a statement early the morning after the decision was released, noting that another federal district court had previously dismissed a lawsuit brought by Arizona Sheriff Joe Arpaio against the executive actions. DHS Secretary Jeh Johnson also released a statement, emphasizing, as did the White House, that the government will appeal the temporary injunction decision. While DHS has announced that it will not begin accepting expanded-DACA applications on February 18 as originally planned, and will also suspend DAPA implementation in accordance with Judge Hanen’s order, the administration and many advocates agree that this decision is only a temporary setback and will ultimately be overturned. The Department of Justice has already announced that it will seek an emergency stay of the injunction, allowing the programs to restart. While Republicans have applauded the judge’s decision, it remains unclear what effect, if any, this decision will have on the current DHS budget negotiations ongoing in Congress. In the end, most advocates are encouraging those who might benefit from deferred action to continue collecting documentary evidence and preparing to apply once these executive actions are finally and inevitably declared legal
[i] Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wisconsin joined Texas in suing the federal government.
[ii] California, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Vermont, and Washington.