Balkinization: Judge Hanen's--and Michael McConnell's--mistakes about "affirmative action" in DAPA

Judge Hanen's--and Michael McConnell's--mistakes about "affirmative action" in DAPA

Marty Lederman

One week ago, Judge Andrew Hanen, of the U.S. District Court for the Southern District of Texas (Brownsville), issued an opinion and order in which he preliminarily enjoined nationwide operation of the Department of Homeland Security’s new “Deferred Action for Parents of Americans" (DAPA) program--the regulatory initiative that was the subject of a wide-ranging Balkinization symposium last November.

On Monday, the federal government made a motion to Judge Hanen to stay the preliminary injunction pending the U.S.'s appeal. In the alternative, the government asks that the injunction be amended to cover only aliens residing in Texas, since the State of Texas is the only plaintiff that Judge Hanen found to have standing--or, at the very least, that the judge should tailor his injunction so that it does not apply in states that are not party to the suit, including a dozen states that have filed a brief explaining that DAPA will substantially benefit them and their residents.*

In the meantime, Professor Michael McConnell has published a defense of Judge Hanen's judgment in the Wall Street Journal. Professor McConnell's condemnation of the DAPA program, however--like Judge Hanen's--rests on a fundamental misunderstanding of the relevant law.

Before discussing the merits, it's important to stress that Michael McConnell is right about three significant things:

First, he is absolutely correct that "we should all be able to agree that the executive branch must follow the law until it has been amended by Congress." Indeed, everyone does agree on that--including the President, Jeh Johnson, Secretary of DHS, and the Office of Legal Counsel. Notwithstanding the efforts of many of the President's opponents to characterize the case as raising a constitutional question concerning executive authority to disregard the law, it does not. It might be a nice talking point for partisan wrangling, but in fact the case does not implicate any questions of a so-called "imperial" President. As I explained here back in November, the federal government is not claiming that it can disregard statutory limitations, nor even that it can act without congressional authorization. This is and always has been simply a matter of statutory interpretation:

If, as the government argues, Congress has conferred upon the Secretary the discretion to defer removal of these aliens – and to authorize employers to hire those aliens, see 8 U.S.C. § 1324a(h)(3) -- then the Secretary obviously does not cause the President to violate his "take Care" duty if he decides to exercise that statutorily conferred discretion.

And if, on the other hand, Congress has clearly precluded the Secretary from exercising such discretion, then that's an ordinary statutory/APA violation, just as is alleged every day in countless other cases challenging agency actions.

Second, although Judge Hanen nominally issued his injunction on procedural grounds (namely, that DHS did not subject the new program to a notice-and-comment rulemaking procedure), his opinion makes it crystal clear that, if and when he reaches the merits, Judge Hanen will find that DAPA exceeds DHS's statutory authority. Accordingly, Professor McConnell’s column is focused—as is this post—on the merits questions. (The notice-and-comment issues warrant separate treatment elsewhere, as does the government's argument that Texas lacks Article III standing to challenge the DAPA program.)

Third, Professor McConnell is correct to emphasize a very important and largely overlooked point about Judge Hanen’s decision: The judge does not rest his injunction on DHS's expected failure to remove (or "deport") DAPA-eligible aliens from the U.S.

Heckler v. Chaney establishes a strong presumption that Congress has afforded the agency the discretion to choose to enforce the removal laws against particular categories of aliens rather than others—a presumption that is especially strong here, because immigration law expressly directs the Secretary to “[e]stablish[] national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5). As the Supreme Court recently recognized in Arizona v. United States, “a principal feature of the removal system is the broad discretion exercised by immigration officials,” which includes the decision “whether it makes sense to pursue removal at all.”

Judge Hanen acknowledges all of this. Accordingly, in his balancing of interests for the purposes of determining whether a preliminary injunction is warranted, he stresses (pp. 118-19) that the injunction does not require DHS to begin removing or “prosecuting” the aliens in question. As Michael McConnell puts it, “the district court narrowly crafted its order not to touch on prosecutorial discretion. The administration remains free to decide which illegal aliens to deport and which to permit to remain in this country.”

Why, then, does Judge Hanen conclude that DHS lacks the authority to issue the DAPA Guidance? Because, he reasons (p.85), the program “is actually affirmative action rather than inaction.”

What does the judge mean by this purportedly crucial action/inaction distinction?

As noted above, the permissible DHS “inaction,” in Judge Hanen's view, is that agency may in the exercise of its prosecutorial discretion decline to remove the aliens in question from the United States, and to shift limited federal resources to the removal of other categories of aliens. The judge writes, however, that such a permissible exercise of “prosecutorial” discretion “does not also entail bestowing benefits” (p. 87). And because DHS purportedly has “bestowed benefits” here, Judge Hanen reasons, it has acted beyond its statutory nonenforcement authority. Michael McConnell emphasizes the same point—that the case is centrally about DHS’s alleged conferred of benefits.

Judge Hanen and Professor McConnell are certainly correct about one thing: DHS's conferral of deferred-action status on an alien will afford that alien at least one very significant benefit--it will free up an employer to hire that alien, something the employer could not otherwise do under federal law. Moreover, the Judge and Professor are also correct that the Heckler v. Chaney doctrine about a presumption of unreviewable nonenforcement discretion does not address this work authorization aspect of the DAPA policy.

So where do Judge Hanen and Professor McConnell go wrong? Simply in this: There is no basis for their underlying assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have been promulgated pursuant to the notice-and-comment rulemaking process.

The judge cites two principal alleged “benefits” that the DHS policy will confer upon covered aliens—but the first of them (“legal presence”) is not a legal benefit at all, and the second (employment authorization, i.e., a so-called “work permit”) is specifically authorized by a different, express provision of the law, and by a 34-year-old regulation, that the plaintiffs have not challenged and that Judge Hanen does not even cite, let alone discuss. Professor McConnell cites a third benefit--the lawful permanent resident status that is attendant to a type of visa. But deferred-action status does not confer that benefit, either.

“Legal Presence”

Judge Hanen repeatedly complains that the DHS policy will “grant legal presence” to the covered aliens. If he were correct that deferred action status grants some sort of “legal presence” to covered aliens and is for that reason not statutorily authorized, that rationale would condemn not only DAPA, but also the entire, long history of deferred-action policies, going back decades. Such deferred-action status does no such thing, however: “granting legal presence” is merely a catchphrase without any legal significance of relevance here.

“DAPA makes the illegal presence of millions of individuals legal,” writes the judge. It “turn[s] 4.3 million individuals from one day being illegally in the country to the next day having lawful presence.”

Not so. DAPA does not make the “presence” of the aliens in question “legal” in any meaningful sense. For one thing, their presence in the U.S.—the mere status of being in the nation without having been authorized to enter—is not illegal, even without DAPA. See Arizona v. United States, 132 S. Ct. at 2505 (2012) ("it is not a crime for a removable alien to remain present in the United States"). As I wrote here in November:

[I]t is not a violation of federal law for an undocumented alien to remain in the United States. Although 8 U.S.C. 1325(a) makes it a misdemeanor for an alien to enter the United States “at any time or place other than as designated by immigration officers,” an undocumented alien has no legal obligation to leave the U.S. once she is present here. (That’s why “illegal alien” is a misnomer.)

Because the status of being present in the U.S. without authorization is not itself a violation of law, DAPA thus does not make an otherwise unlawful “presence” lawful.** Nor does it immunize aliens against penalties for past violations of the law, such as for entering the U.S. without authorization.

At other points in his opinion, Judge Hanen hints that what he has in mind when he refers to “legal presence” is the notion that deferred-action status confers a legal right not to be removed from the U.S. At one point in his opinion (p.87), for example, Judge Hanen asserts that deferred action status gives a covered alien “three years of immunity” from the law that makes her removable.

This is a simple mistake of law. DAPA does not afford covered aliens any "right" not to be removed for having entered the country without authorization (or overstaying one's visa). If DAPA were in effect and DHS Secretary Jeh Johnson tomorrow decided to remove any deferred-action alien, he would absolutely be free to do so, and a court would confirm that removal. As the Guidance itself states unequivocally, deferred-action status "may be terminated at any time at the agency's discretion," and “does not confer any form of legal status in this country” or any “substantive right.” Accordingly, such status does not give an alien a right not to be removed, and does not tie the agency's hands in any future removal proceeding. (Nor does deferred action status provide a basis for an alien to seek lawful permanent residence or U.S. citizenship.)

Visas and Lawful Permanent Resident Status

To similar effect, Professor McConnell--but not Judge Hanen--asserts that DAPA status confers yet another benefit, in that it allegedly "dispenses with" the requirement of the INA that undocumented aliens who are parents of a U.S. citizen must "wait until the child turns 21, and then must leave the country for 10 years[,] before applying for a change of immigration status on account of that child." This, too, is simply mistaken.

The "change of immigration status" to which Professor McConnell refers is the conferral or an immigrant visa, which leads to lawful permanent residence (LPR, commonly known as having a “green card”) upon admission, or of a nonimmigrant visa, which leads to lawful temporary status (such as H-1B specialty occupation worker status) upon admission. Professor McConnell is correct that the statute does not allow the parent of a U.S. citizen to obtain such a visa--or the attendant LPR or lawful temporary status--until the child turns 21, and after the alien has been out of the country for 10 years. But conferral of "deferred action" status does not affect those things: DAPA-eligible aliens must still satisfy the statutory criteria in order to obtain the visas in question, and the legal benefits, such as LPR status, that come with them. This is clear from the OLC opinion: "As has historically been true of deferred action, these proposed deferred action programs would not 'legalize' any aliens who are unlawfully present in the United States: Deferred action does not confer any lawful immigration status, nor does it provide a path to obtaining permanent residence or citizenship. . . . Grants of deferred action under the proposed programs would, rather, represent DHS’s decision not to seek an alien’s removal for a prescribed period of time." And it is confirmed in Jeh Johnson's DAPA memorandum itself:

"Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States. Nor can deferred action itself lead to a green card. . . . This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights."

Employment Authorization

Which brings us, finally, to the crux of Judge Hanen’s analysis (and Michael McConnell’s column): The judge emphasizes repeatedly that the new policy confers “work authorization” on covered aliens. He is basically right about that: As a result of the new program, employers will be legally permitted to hire and employ undocumented aliens who enjoy the new deferred-action status “on a showing of economic necessity,” something that would have been illegal for the employers to do but for DAPA. The new DHS policy, in other words, does have this “affirmative” impact, wholly apart from “nonenforcement”—it results, in the judge’s words, in a type of “action” rather than inaction, and the legality of that consequence is not addressed (not directly, anyway) by the Heckler v. Chaney presumption of nonenforcement authority.

Here’s the rub, however: Judge Hanen completely overlooks the fact that Congress has conferred very broad authority on the DHS Secretary to authorize employers to hire non-permanent-resident aliens who it would otherwise be unlawful to employ—and for several decades the Attorney General and Secretary of DHS have exercised that discretion by authorizing employers to hire several enumerated categories of such aliens, including those with deferred action status. As OLC put it, the work authorization aspect of the DOPA initiative thus does not depend on background principles of agency discretion under DHS’s general immigration authorities, but instead on "independent and more specific statutory authority rooted in the text of the INA."

I explained as much here back in November; but it’s worth repeating and elaborating some of the details now that Judge Hanen and Professor McConnell have placed so much significance on the supposed lack of statutory authorization for DHS's anticipated work authorization for aliens who received DAPA status.

The text of the relevant statutory law is fairly straightforward: The Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a(a), generally makes it unlawful to hire or employ an “unauthorized alien.” The statute in turn defines “unauthorized alien” to mean an alien who is neither lawfully admitted for permanent residence nor “authorized to be . . . employed by this chapter or by the Attorney General.” Id. § 1324a(h)(3). IRCA thus expressly provides that the Attorney General may authorize non-admitted aliens to be eligible for employment, notwithstanding the general prohibition in § 1324a(a). (When it later moved the INS from the Department of Justice to DHS, Congress prescribed that the Secretary of DHS is henceforth to perform this and other immigration-related authorities that the statute by terms assigns to the Attorney General.)

As OLC explained at pages 21-22 & note 11 of its opinion, before Congress’s enactment of IRCA in 1986, the INS itself imposed similar employment restrictions, pursuant to its understanding of what the Immigration and Nationality Act (INA) itself required; and the Attorney General exempted certain aliens from that baseline work-prohibition rule--specifically including those with “deferred-action” status. This scheme, included a specific deferred-action authorization provision, was codified in a rule promulgated (after two rounds of notice and comment) by President Reagan's INS in 1981.

In 1986, the Federation for American Immigration Reform (“FAIR”) petitioned the INS to rescind its 1981 employment authorization regulation. FAIR argued, in particular, that the AG's authorizations were ultra vires--that the INA did not give him the authority to designate the categories of employment-eligible aliens identified in the rule. The INS published FAIR's petition and invited comments on it.

Just a few days later, Congress passed, and President Reagan signed, IRCA, which not only codified the basic prohibition on employer hiring of "unauthorized aliens," but also specifically empowered the Attorney General to "authorize[]" aliens who may lawfully be hired. The INS began another notice and comment rulemaking with respect to its proposed regulations implemeting IRCA, which incorporated the 1981 rule that deferred-action aliens could be authorized to to work. The IRCA-related rule was made final in May 1987 (and has been in effect ever since). Meanwhile, in its pending petition proceedings, FAIR argued that IRCA only authorized the Attorney General to grant work authorization for “those aliens who have already been granted specific authorization by the Act”--which would have excluded aliens with deferred action status. The INS rejected FAIR’s argument in December 1987, reasoning that “the only logical way to interpret [the IRCA] phrase [‘authorized to be so employed by this Act or the Attorney General’] is that Congress, being fully aware of the Attorney General's authority to promulgate regulations, and approving of the manner in which he has exercised that authority in this matter, defined ‘unauthorized alien’ in such fashion as to exclude aliens who have been authorized employment by the Attorney General through the regulatory process, in addition to those who are authorized employment by statute.” 52 Fed. Reg. 46092, 46093 (Dec. 4, 1987).

Accordingly, since 1981, the Attorney General (whose authorities Congress has more recently transferred to the DHS Secretary) has by regulation authorized employers to hire undocumented aliens who have been afforded “deferred action” status; and since 1987 the agency has specifically interpreted IRCA to authorize, and not to prohibit, such conferral of work authorization. This rule, moreover—which remains in place at 8 C.F.R. § 274a.12(c)(14)—has been subject to several rounds of notice and comment procedures--by my count at least three between 1979 and 1987 alone (see 44 Fed. Reg. 43480 (July 25, 1979); 51 Fed. Reg. 39385 (Oct. 28, 1986); 52 FR 8762 (Mar. 19, 1987)). (This history might be important for purposes of Judge Hanen's procedural ruling.) In addition, as OLC notes, Congress has long been aware of this rule, and has never taken steps to limit the Attorney General’s (later the Secretary’s) authority to afford work authorization to deferred action recipients. To the contrary: With knowledge of FAIR's pending challenge to the AG's authority in 1986, Congress specifically provided in IRCA that the Attorney General could authorize aliens to be hired.

Perhaps there is a good argument to the contrary—i.e., that this 34-year-old work authorization rule is unauthorized by statute--that I'm not aware of. But if there is, Judge Hanen and Professor McConnell do not mention it. Indeed, Judge Hanen does not even cite the relevant work-authorization statute and regulation in his 123-page opinion, let alone make any effort to argue that they do not give the Secretary the power to authorize employers to hire this, or any other, category of aliens enumerated in the regulation.

Therefore, at least absent further analysis that would call into question this longstanding application of § 1324a(h)(3) and the INS/DHS regulation, the heart of Judge Hanen’s analysis concerning DHS’s so-called “affirmative action” under the new DHS Guidance is groundless.

* * * *

In sum, if, as Judge Hanen and Professor McConnell insist, the key question in this case is not primarily about nonenforcement discretion respecting removal--which they concede is within the Secretary's statutory authority--but instead about whether DHS would engage in "affirmative action" to "bestow benefits" on DAPA-eligible aliens, well . . . there is no "there" there.

[UPDATE: For further details on some of the points in this post, see Anil Kalhan's comprehensive post at Dorf on Law.]

* As the government explains: "Injunctive relief must be tailored to the parties properly before the court and to the harm that those parties are able to demonstrate. See Defs.’ Opp. at 50 n.40; see also Lion Health Servs., Inc. v. Sebelius, 635 F.3d 693, 703 (5th Cir. 2011). Nationwide injunctive relief is particularly inappropriate in the context of government programs. See United States v. Mendoza, 464 U.S. 154, 159 (1984). The only specific harm the Court found here was the potential cost that Texas would allegedly incur from having to issue driver’s licenses to future recipients of DAPA and modified DACA by operation of state law. A nationwide preliminary injunction barring the implementation of the Secretary’s Guidance for the exercise of discretion in the administration and enforcement of federal law is plainly not necessary to provide Texas with relief from this alleged harm. At the same time, a nationwide injunction trenches on the authority and discretion of the Secretary in the administration and enforcement of the immigration laws. It also impairs the interests of individuals who may benefit from DAPA and modified DACA and the interests of nonparty States in having DAPA and modified DACA implemented—including the interests of those twelve States and the District of Columbia that filed an amicus brief in support of the Deferred Action Guidance, on the ground that it will 'substantially benefit,' rather than harm, them and their residents. See Amicus Br. of Washington, et al. at 2. Without at least a partial stay, the Court’s Order would needlessly deprive those States of the anticipated benefits of DAPA and modified DACA during the pendency of any appeal. Thus, at a minimum, Defendants are entitled to a stay of that portion of the Order that applies to the Government’s implementation of the Deferred Action Guidance in States other than Texas, or, at the very least, in States not joined in this action."

** One provision of the immigration laws, 8 U.S.C. § 1182(a)(9)(B), does use the term “unlawful presence,” which it defines not as violating a law prohibiting such presence (there is none), but instead as being “present in the United States after the expiration of the period of stay authorized by the Attorney General or . . . present in the United States without being admitted or paroled.” If an alien has been present without legal authority in this sense for at least one year and then leaves the U.S., he is inadmissible for lawful entry for ten years thereafter. Although deferred action tolls the accrual of such “unlawful presence” for purposes of the ten-year ban on admission, that is irrelevant for virtually all individuals who would be afforded deferred action status under DACA or DAPA, since they already have lived in the U.S. for more than a year.

Posted 2:46 PM by Marty Lederman [link]