an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Texas v. United States: Fifth Circuit declares President Reagan's immigration regulation unlawful
You read that right--President Reagan's immigration regulation.
What about the Obama Administration's controversial policy decision last year to refrain from removing (or deporting) so-called DAPA ("Deferred Action Parents of Americans and Lawful Permanent Residents") aliens? You wouldn't know it from most press accounts, but the U.S. Court of Appeals effectively affirmed that Obama policy and practice concerning removals in its high-profile decision last Monday. The court then proceeded, however, to hold that the Secretary of Homeland Security could not authorize employers to hire those same DAPA aliens, because the Reagan-era regulation that sanctions such hiring is "is beyond the scope of what the [immigration statutes] can reasonably be interpreted to authorize."
This important redirection of the case toward a challenge to the Reagan-era regulation involving work authorization has been in the works for a while: As I discussed here back in February, both the district court judge and DAPA critics such as Michael McConnell had more or less come around to conceding that the statute gives the Secretary broad, unreviewable discretion to decide which aliens to remove from the country; they had therefore turned their sights more acutely on the "benefits" that are triggered by such deferred removal--in particular, DHS's approval of such aliens to be hired to work. In his decision and injunction in February, for example, Judge Hanen stressed that the injunction does not require DHS to begin removing or “prosecuting” the aliens in question; he held instead that the Department had to engage in the notice-and-comment rulemaking process before it could confer work authorization for those aliens (even though the underlying regulation had been subjected to that notice-and-comment process many times over in the 1980's).
The court of appeals has now gone one huge step further--it holds not only that the hiring authorization for DAPA aliens must be subject to further notice and comment procedures, but also, on the merits, that the immigration statutes do not authorize the Secretary to permit such hiring. Indeed, the court of appeals' rationale would invalidate all of the Department's (and the INS's) work authorizations for millions of "deferred action" aliens over at least the past 29 years, including the "DACA" aliens (certain young people who were brought to this country as children) who were recognized as authorized to work in 2012. And that's not all: the logic of Judge Smith's reasoning would appear to call into question DHS's work authorizations for many other categories of removable aliens, as well, in addition to those who are designated for "deferred" removal. To take but one very significant example: In 1990, the Bush Administration permitted employers to hire 1.5 million undocumented spouses and children of aliens, pursuant to its "Family Fairness" program. And, like DAPA, the "Family Fairness" program covered approximately 40 percent of all then-removable aliens. (See pages 14-15 and 31 of the OLC DAPA opinion.) If the court of appeals' reading of the statute were correct, the Family Fairness initiative, as well as many other decisions over the years in which the Attorney General and the Secretary of DHS have authorized employers to hire classes of aliens other than those specifically enumerated in the statute itself, would not have been legal.
How did we get here, to such a strange result that might so profoundly disrupt several decades of work authorization rules and practices?
One year ago, when the Secretary of DHS announced the DAPA program, we convened a blog symposium here. The sixteen posts in that symposium focused almost exclusively on whether the Secretary has the statutory discretion to defer removal for the large class of persons in question. Our emphasis on removal discretion was understandable, since almost all of the public alarm raised against the initiative likewise focused on the President's alleged failure to enforcethe removal provisions of the law, a policy that was said to violate his constitutional obligation to take care that the law is faithfully executed. A couple of the sixteen posts in our symposium mentioned in passing that the aliens in question would be authorized to work, and in my final entry I offered a brief discussion of the work authorization issue . . . but that was it. Thus, in their closing post, symposium conveners Adam Cox and Cristina Rodriguez expressed surprise that the work authorization question had so quickly "receded" from both sides of the debate; one reason for this, they surmised, was that the question "quickly came to be seen as a matter of straightforward statutory delegation."
Well, it's receded no more--work authorization is now at high tide, thanks to the court of appeals' decision.
We'll have more to say on this issue if and when the Supreme Court grants cert. on the government's soon-to-be-filed petition. For now, however, here's a very brief summary of the issue, adapted in part from my February post.
The immigration statutes afford the Secretary two very broad discretionary authorities of relevance to this case--a removal discretion and a work authorization discretion:
First, Congress has delegated to the Secretary the authority to “[e]stablish national immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), and the Supreme Court has recently explained that this "broad discretion," a "principal feature of the removal system," encompasses the decision “whether it makes sense to pursue removal at all.”
Second, although 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,” that 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--now the Secretary of DHS--may "authorize" non-LPR-admitted aliens to be eligible for employment; and when he does so, such Secretary-designated aliens are, quite literally by definition, not "unauthorized aliens" who are subject to IRCA's hiring prohibition. (When it later moved the INS from the Department of Justice to DHS, Congress transferred this and other authorities from the Attorney General to the DHS Secretary.)
When the Texas v. United States case began, as when we ran our blog symposium, almost all attention was on the scope of the first discretionary authority--the Secretary's authority to decide which aliens to remove, or not to remove, at any given time. In particular, Texas and the other plaintiffs insisted that the Secretary's removal authority does not permit him to do something on the order of DAPA, i.e., to announce that, at least for the time being, he presumptively* will not remove a large class of aliens who are otherwise subject to removal. Paragraph 75 of the amended complaint, for example, alleges that
Congress has provided that it is illegal for undocumented immigrants to be in the United States and has required the executive branch to remove those individuals. Under 8 U.S.C. § 1225, every individual who is not present in the United States legally "shall" be "inspected" by immigration officers; and if the officer determines that the individual is not clearly and beyond a doubt entitled to be admitted, the individual "shall be detained" for removal proceedings. Id. § 1225(a)(1), (a)(3), (b)(2)(A). This imposes a mandatory duty on the executive branch.. . . This mandatory duty extends to the removal of any undocumented immigrant present in violation of federal law, unless Congress provides a specific exception.
Importantly, neither the district judge nor the court of appeals has credited this argument. At best, they technically did not resolve the so-called "take care" claim that rests upon it. (I explained here why the "take care" issue is a red herring, and why the DAPA program is not "unilateral" executive action: What's at issue is simply an ordinary dispute about the meaning of statutory law--in particular, whether the statutes confer upon the Secretary the discretion he has exercised to defer removal of the DAPA class of aliens.) Judge Hanen, for example, stressed that his injunction does not require DHS to begin removing or “prosecuting” the aliens in question.
The court of appeals went even further: It pointed decisively toward a decision against Texas on the merits of the removal-deferral question. In his majority opinion, Judge Smith wrote that the Administrative Procedure Act does not "require the Secretary to remove any alien or to alter his enforcement priorities," and he quoted with approval "the Supreme Court’s description,
in [Reno v. American-Arab Anti-Discrimination Committee], of deferred action as a nonprosecution decision"that affords the Secretary very broad authority to make removal decisions: "'To ameliorate a harsh and unjust outcome, the INS may decline to institute
proceedings, terminate proceedings, or decline to execute a final
order of deportation. This commendable exercise in administrative discretion,
developed without express statutory authorization, originally
was known as nonpriority and is now designated as deferred action
. . . . Approval of deferred action status means that . . . no action will
thereafter be taken to proceed against an apparently deportable alien . . . .'"
Accordingly, the Obama Administration has effectively prevailed as to question that engendered so much controversy when Jeh Johnson announced the DAPA policy. As Michael McConnell succinctly put the most important point: "The administration remains free to decide which illegal aliens to deport and which to permit to remain in this country."
So what's the catch? It's this:
As long as the Secretary defers removal, those aliens will remain in the United States, but . . . according to the court of appeals, employers cannot lawfully hire them to work.
This ruling against the government, in other words, depends upon the court of appeals' assumption concerning the scope of the second form of discretion that the law confers upon the Secretary--the authority to decide which removable aliens may be lawfully employed. (The court also refers to other alleged federal "benefits" that are said to follow from a "deferred action" decision. As I explained in my earlier post, however, there are no such other benefits for these aliens that do not flow from employment--in particular, "deferred action" does not afford the aliens any "rights" to be present in the United States, nor does it immunize the aliens from penalties for any unlawful conduct.*)
One remarkable thing about the court's ruling is that the Texas plaintiffs did not even challenge the Reagan-era regulation that permits employers to hire such aliens--a regulation that went through several rounds of the notice and comment process three decades ago, and in which the agency specifically turned aside objections that the rule (and the Attorney General's discretion more broadly) was not authorized by statute.
Recall, as explained above, that although the 1986 statute, IRCA, generally makes it unlawful to hire or employ an “unauthorized alien,” that statute also gives the Secretary broad authority to decide which removable aliens are "unauthorized" for purposes of the hiring ban: It 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 [Secretary].” 8 U.S.C. § 1324a(h)(3).
Since Congress enacted the statute in 1986, the Attorney General and (later) the DHS Secretary have designated dozens of types of aliens as "authorized to be . . . employed" under specified conditions--most or all of which are listed and described in 8 CFR 274a. And for that entire period of three decades (indeed, even before IRCA), the regulation has included among its categories "[a]n 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" (see current subsection 274a(c)(14)). That is to say, for more than 30 years it has been the law that if and when the Secretary (previously the Attorney General) gives "lower priority" for removal to a specific group of removable aliens, such aliens are then, by operation of the Reagan-era regulation, not "unauthorized" aliens, and thus are not subject to the hiring ban, assuming they can establish "an economic necessity for employment."
This decision by the Reagan INS in the 1980's--to provide that "deferred action" aliens can be part of the lawful national workforce--made perfect sense. After all, aliens whose removal was deferred, and who would therefore likely be in the nation for an extended period, would be a drain on society--and certainly on family members, friends, or charity--if they did not work. And if they instead decided to work, it could only be for an employer willing to hire them unlawfully, in which case their hiring would be more likely to depress wage markets, and the tax base. Once the Secretary deems them eligible for hiring, however, these problems diminish, and the aliens in question are more likely to pay higher taxes, and to obtain work-sponsored health insurance, thereby decreasing their reliance on government-subsidized health care.
In 1986, the Federation for American Immigration Reform (“FAIR”) filed a petition arguing that the Attorney General's regulatory work authorizations were ultra vires--that the statute did not give him (then Ed Meese) the authority to designate such categories of employment-eligible aliens. The INS published FAIR's petition and invited comments on it. And once President Reagan signed IRCA, FAIR argued that the new law 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 any removable aliens who were in a work authorization category prescribed by the Attorney General, including those so-called "deferred action" aliens whose removal was placed in a "lower priority."
In 1987, the INS rejected FAIR’s argument. As for FAIR's argument that AG-designated work authorization was inconsistent with the “purpose of the Act” to “protectthe American labor force,” the INS replied that this “over-simplified the purpose of the Act, . . . [which] is a very complex statute which has many different purposes, some of which may appear at time to be in conflict with others." Ultimately, the INS relied upon a plain reading of the language of § 1324a(h)(3), and on the context in which Congress had enacted that provision, as support for the Attorney General's designation of categories of aliens who are not "unauthorized" to be hired: “[T]he 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 permitted employers to hire undocumented aliens whose removal has been given a "lower priority"; and since 1987 the agency has specifically interpreted IRCA to authorize, and not to prohibit, such conferral of work authorization to such "deferred action" aliens. This rule was, moreover, subject to several rounds of notice and comment procedures. What's more, Congress has been aware of the regulatory categories of work authorization for all these years and has not, as far as I know, taken any steps to limit the Attorney General’s or Secretary’s authority to afford work authorization to deferred action aliens--even though, as Judge King notes, Congress has barred the Secretary from granting work authorization to at least some other categories of aliens (e.g., 8 U.S.C. § 1226(a)(3)).
Despite all of this, the court of appeals concluded last week that the "deferred action" subsection of the Reagan-era work authorization rule, at least as applied to DAPA aliens, is simply "beyond the scope of what the INA can reasonably be interpreted to authorize"--indeed, that it is "an unreasonable interpretation that is 'manifestly contrary' to the INA"! Moreover, in order to reach this ruling, the court had to ignore the Fifth Circuit's own statements in its 1980 decision in Perales v. Casillas that the work-authorization authority in subsection 1324a(h)(3) is “permissive” and largely “unfettered.” (Judge Smith in effect decided that that passage from Perelas was dicta, because that case involved a challenge to the denial of work authorization, rather than a challenge to the granting of such authorization.)
What is the Fifth Circuit's reasoning for this remarkable holding? Judge Smith first makes a nod to a textual argument: He notes that § 1324a(h)(3) "does not mention lawful presence or
deferred action." But of course that section does not mention any of the dozens of categories of aliens that the AG and Secretary have designated as not "unauthorized" to be hired--instead, it simply affords the Secretary a broad power to designate which removable aliens employers can hire, in addition to those Congress designates by statute.
Accordingly, the court of appeals ultimately rests its decision upon the very rationale that FAIR raised, and that the agency turned aside, in the 1980's--namely, that the Secretary's authority to permit employment of aliens (other than those who are lawful permanent residents) does not extend beyond those aliens that Congress itself has identified as eligible to work. Judge Smith reasons that the INA, as amended by IRCA, creates a "careful employment-authorization scheme [to] 'protect against the displacement of workers in the United States,'" and assumes that Congress's “'primary purpose in restricting immigration is to preserve jobs for American workers.'” He also notes, correctly, that the INA itself "specifies classes of aliens eligible and ineligible for work authorization." Based upon those features of the law, the majority figures that the Secretary's interpretation of § 1324a(h), which "would
allow him to grant . . . work authorization to any illegal alien [sic--see note*] in the United States," must be "an untenable position in light of the INA’s intricate
system of immigration classifications and employment eligibility."
This rationale amounts to a full-throated rejection of 30+ years of agency rulemaking pursuant to the Secretary's authority under § 1324a(h)(3)--rulemaking that Congress has not questioned in those three decades.
Accordingly, what's at stake in the coming Supreme Court case (assuming the Court grants cert.) is much more than the fate of the DAPA program itself--it's the entire, well-established edifice of work authorization for removable aliens over the past 30 years, involving the employment of many millions of removable aliens (including the 1.5 million aliens subject to President Bush's "Family Fairness" policy, in the period prior to Congress's ratification of their work authorization).
By contrast, and perhaps ironically, the one thing that presumably won't be at issue in the Supreme Court case is the authority of Secretary Johnson to grant the DAPA aliens temporary (revocable) relief from removal (i.e., deportation), because the courts below appear to have agreed with the Secretary that he has a broad, unreviewable authority to make or defer such removal decisions.
* The court of appeals insists that it is "unlawful" -- a "civil offense," even if not a criminal offense -- "for a removable alien to remain present in the United States,” and that therefore when the Secretary confers "deferred action status" upon an alien, he thereby "transform[s] presence deemed unlawful by Congress into lawful presence." As I've previously explained, however, this is simply a misunderstanding of the law. It is not an offense of any kind, criminal or civil, for a removable alien "to remain in the United States": there is no penalty, civil or otherwise, for doing so (and the statutory provisions cited by the court of appeals do not suggest otherwise). (In some cases it might have been unlawful for a deferred-action alien to have entered the United States in the first instance; but, where that is the case, culpability for that offense is unaffected by "deferred action" status.) To the same effect, the designation of “deferred action” does not in any respect alter an alien's legal status or immunize her from any penalties for wrongdoing; as Judge King notes in dissent, it "refer[s] to nothing more than DHS’s tentative decision, revocable at any time, not to remove an individual for the time being—i.e., the decision to exercise prosecutorial discretion."
** It is merely a presumption. The DAPA policy does not afford covered aliens any "right" not to be removed for having entered the country without authorization (or overstaying a visa). If DAPA were in effect and DHS Secretary Jeh Johnson tomorrow decided to remove any or all of the deferred-action aliens, he would be absolutely free to do so, and a court would confirm that removal. As the DAPA 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.