These are dysfunctional times for our immigration system. Congress twice tried and failed to overhaul it in the last decade, in 2007 and 2013, leaving the president to sort things out on his own. But the Obama administration’s own policies have been confused, contested, and sometimes both.
Take refugees: After the Paris attacks in November 2015, governors across the country stumbled over themselves to block Syrians from entering their states, even after vetting and approval by the administration. Texas even sued the White House to keep them out. Earlier, in response to the wave of Central Americans crossing the Rio Grande in 2014, the administration decided to imprison mothers and children seeking asylum to deter future border-crossers; two federal judges struck down that policy last year. Tens of thousands of those children are now representing themselves in immigration court without a lawyer.
In the last couple years, meanwhile, the pendulum of deportation policy has swung hard. The administration deported record numbers of immigrants from 2009 to 2014, only to announce a plan to protect millions of them from removal. The program, Deferred Action for Parental Accountability, or DAPA, was set to go into effect on February 18, 2015. But a federal judge in Texas blocked it, and the Fifth Circuit Court of Appeals affirmed that decision last November.
Now the Supreme Court will enter the melee. Earlier today, the Court agreed to decide the DAPA case, United States v. Texas, by the end of this term, meaning that we will have a decision by June—easily enough time for the president to implement his program, if it survives. The question at the heart of the case is this: Will the justices allow the president to assert some control over an immigration system in revolt?
The DAPA program is a product of the many conflicts over immigration that have rattled the country in recent years. It was announced in November 2014. Until that point, the administration had carried out a ferocious program of deportations, which many assumed was meant to maintain credibility while negotiating with Republicans over comprehensive reform. The Senate had passed a bill, in the summer of 2013, that would have strengthened border security in exchange for a path to legal status, and ultimately citizenship, for millions of undocumented immigrants living in the United States. By early 2014, however, it was clear that the House would never take up the bill. Pressure for executive action mounted. States and cities were also starting to push back against the tide of deportations, refusing to help federal authorities identify and arrest immigrants who had built lives in the United States. Still, despite repeated promises to scale back, the administration held out, for fear of hurting Democratic candidates in close midterm races. Most of them lost anyway.
When the announcement finally came, it was a big one. DAPA would give undocumented parents who have lived here for five years, and whose children are U.S. citizens or have green cards, the chance to apply for “deferred action”—a promise not to deport them for three years—along with permission to work. It would also expand the existing Deferred Action for Childhood Arrival (or DACA) program, introduced in 2012, which allows young immigrants to apply for deferred action if they were brought here as children and either have or are working toward a high school diploma. Up to five million people might be eligible for the new programs, out of an undocumented population of about eleven million.
DAPA promised to make life for undocumented immigrants less of a game of chance. Previously, the difference between banishment and life as normal could come down to a broken tail light or a speeding ticket. But with deferred action, those with clean records and deep ties can be relatively sure that they will not be deported at random. It also means they can legally work. DAPA would bring deportation policy in line with popular sentiment, which widely favors relief for the program’s beneficiaries. And it would lend some measure of coherence to what, for years, has been an inconsistent and heavy-handed deportation regime.
What it could not do, however, was heal our deep divides over immigration. Weeks after DAPA was announced, a coalition of two dozen states, led by Texas, sued to undo it. Two days before the Department of Homeland Security was set to start accepting applications, a federal trial judge in South Texas issued a nationwide injunction, halting the program from going into effect anywhere in the country. The judge held that the opposing states were likely to win on their narrowest claim: that the DHS should have allowed for public comment before announcing the policy.
In November, the Fifth Circuit Court of Appeals agreed, 2-1, and added that even if the right procedure had been followed, the policy violated the immigration laws.
The Supreme Court will now face several questions about the program’s legality. Did DAPA have to go through public comment, and if not, has Congress prohibited large-scale deferred action? (The Court also asked for briefing on Texas’s third, and grandest, claim—that the program violates the Constitution.) But before it gets there, the Supreme Court will need to decide whether the states can even challenge the policy in the first place.
To contest a government policy in court, plaintiffs must show an “injury in fact,” which means that they are personally harmed by the policy; it is not enough to simply disapprove from a distance. This requirement is known as “standing.” In the DAPA lawsuit, both lower courts ruled that Texas had standing, but they relied on a curious theory: Because Texas subsidizes driver’s licenses for immigrants with deferred action, it will now have more licenses to subsidize. The problem with that logic is that it would allow any state to create standing, simply by tying its laws to federal policy. As the Fifth Circuit acknowledged, Texas could just stop subsidizing those licenses. The Supreme Court has tended to reject these kinds of “self-inflicted” injuries that litigants can conjure at will.
The standing question is crucial for a few reasons. It’s one that is likely to appeal to the Court’s conservatives, who generally favor tighter standing requirements. It would also save the Court from having to sort through some knotty issues of administrative and constitutional law. More broadly, a generous ruling in favor of state standing could exacerbate the dysfunction that has plagued the immigration system in recent years. If Texas has standing in this case, then states might have standing to challenge almost any policy that loosens enforcement, or gives someone lawful status. (See, for example, Texas’s lawsuit to block Syrian refugees.)
In some ways that’s a good thing—courts will make sure the president is following the law—but it means that every humanitarian gesture will now have to go through the gauntlet of litigation. There are real human costs, as the DAPA case shows. Even if the Supreme Court reinstates the program this summer, Texas’s lawsuit will still have forced millions of people not to work and millions of families to live in fear for an extra year and a half.
This isn’t the first time pro-enforcement states have tried to force the federal government’s hand. At the beginning of the Obama administration, a half dozen states passed laws that encouraged immigration arrests, criminalized unauthorized work, and cut off basic life necessities, like the ability to rent an apartment. The Supreme Court struck down the most notorious version, Arizona’s S.B. 1070, in 2012. Lower courts then dismantled most other attempts to encourage “self-deportation,” as Mitt Romney famously put it. The message was clear: States don’t get to set the terms of federal generosity.
Not so, this time around. Hanging over the minute details of standing doctrine, in this case, is the bigger question of whether states will have the right to oppugn and delay all federal reprieves.
States are not the only ones pushing for more deportations. As the administration tries to rationalize its immigration policy, the biggest challenge has actually come from within. The agents who arrest, prosecute, and remove immigrants have made it clear that they favor much stricter enforcement. After the president announced DACA in 2012, several Immigration and Customs Enforcement agents, including the union president, sued to block the program from going into effect. The courts tossed out the suit for—you guessed it—lack of standing. In 2011, the head of ICE, John Morton, issued a memorandum directing agents not to focus their limited resources on immigrants with clean records, long-time residence, and families in the United States. In the lead-up to that memo, the agents’s union announced a unanimous vote of no confidence, citing Morton’s “misguided and reckless initiatives.”
The difference of opinion has had real-world effects. Morton issued several of these “priorities” memos, and line-level agents almost universally ignored them, continuing to deport immigrants with deep roots here and no convictions. In June 2011, DHS instructed agents not to deport students with clean records who were brought here as children. The agents did anyway, forcing the administration to use DACA to solidify that policy.
Later in 2011, the administration instructed immigration prosecutors to close cases of people who were not priorities for deportation; little changed. In 2012, the administration asked agents to stop sending detention requests to local police for immigrants without criminal records. Still nothing. On the day it announced DAPA, DHS released another policy memo, this time requiring agents to get a supervisor’s approval before pursuing someone who was not a priority. Five months later, almost 70 percent of detention requests still targeted immigrants with no criminal record, not even a misdemeanor. Anecdotal reports from across the country confirm that the memos have largely failed to constrain front-line agents.
This pattern of defiance is not mentioned in any of the briefs or court decisions in United States v. Texas. But it was an essential antecedent for DAPA, which effectively forces immigration agents to follow the previous policies. That dynamic casts the Fifth Circuit’s opinion in a very different light. The court did not rule that the president had to deport anybody. Quite the contrary. It said the administration can refrain from pursuing any of the parents eligible for DAPA, it can even promise them as much through deferred action, and once it does, it can permit them to work. It just can’t have a policy to dictate who should get deferred action. Or, more precisely, it can’t have a policy with any teeth. That is not a rational way to run an agency. The practical result of the Fifth Circuit’s ruling is to shift basic policy decisions from our nation’s immigration policy-makers—the president and the secretary of homeland security—to our immigration police.
This is the elephant in the courtroom. The lawsuit is not just about the balance of power between the president and Congress, as the briefs suggest. It’s about democratic control of the police. Do our elected officials have the right to control the enforcement bureaucracy? Can the states stand in their way? Will the gridlock and obstruction that has afflicted Congress be allowed to pervade the executive branch too? Must millions of children continue to live with credible fear of losing their parents? There are some big questions at stake. Beneath the case’s many legal issues, the justices will have to decide, more fundamentally, whether the president can finally restore some order and humanity to our troubled immigration system.