Texas v. United States of America
On November 20, 2014, President Barack Obama announced a series of executive actions that suspended our immigration laws as applied to 4 million plus illegal aliens. In part, the president sought to defer the removal of these illegal aliens and grant them work permits, social security numbers, and other benefits, all to the detriment of America’s working class and taxpayers, especially the most vulnerable Americans, including minorities, students, and seniors. Shortly after the announcement, a large coalition of states, governors, and state attorneys general filed a federal lawsuit against the United States and the U.S. Department of Homeland Security (DHS) to block implementation of the executive actions that expanded the 2012 Deferred Action for Childhood Arrivals (DACA) program and created the Deferred Action for Parents of Americans (DAPA) program.
IRLI submitted a friend-of-the-court brief (attached below) in support of the plaintiff states’ request for a preliminary injunction. IRLI’s brief focused on identifying and explaining the interrelated operation of federal immigration statutes that in effect restrict the exercise of executive discretion in the field of immigration admissions and removals. A second section of the brief reviewed instances of deferred action since the 1950s to demonstrate that Congress has never acquiesced to any form of informal executive deferred action except in the narrowest of circumstances. In this regard, IRLI’s brief was unique. Our rapid response to the Texas attorney general’s request for a brief was possible due to the background research on executive discretion in immigration law undertaken by IRLI dating back to 2011.
Just days before the expanded DACA and DAPA programs were to be implemented at the agency level, District Judge Andrew Hanen granted the plaintiff states’ motion for preliminary injunction, effectively halting implementation of the programs until a trial on the merits of the lawsuit. Judge Hanen’s opinion largely focused on procedural failures by government immigration officials, but where his order and memorandum did touch on substantive issues of immigration law and separation of powers doctrine, it closely followed IRLI’s analysis of the mandatory character of certain Immigration and Nationality Act (INA) provisions.
The federal government appealed the decision to the U.S. Court of appeals for the Fifth Circuit. In the spring of 2015, IRLI filed another friend-of-the-court brief (attached below) on behalf of the plaintiff states, this time joined by the Federation for American Immigration Reform, The Remembrance Project, and the National Sheriffs’ Association. The Fifth Circuit subsequently denied the federal government’s motion to stay the lower court’s injunction.
On November 9, 2015, the Fifth Circuit affirmed the district court’s injunction against the Obama administration’s unlawful amnesty agenda—a great victory for the rule of law and for the American people! The court went beyond affirming the district court’s standing and procedural Administrative Procedure Act (APA) ruling and ruled that the programs also violate substantive APA provisions. The court completely dismissed the statutory authority the administration claimed it has to implement DAPA and expanded DACA: The broad grants of authority in the relevant statutes “cannot reasonably be construed as assigning ‘decisions of vast “economic and political significance,”’ such as DAPA, to an agency.” The court continued, “The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.”
As part of their argument to overturn the district court’s injunction, the president’s attorneys argued that government decisions to allocate deferred action benefits cannot be reviewed by federal courts in light of the Supreme Court’s 1996 decision in Reno v. Anti-Arab American Discrimination Commission. In rejecting this assertion, the Fifth Circuit adopted the arguments made in IRLI’s brief that the statutory provisions cited by the President’s attorneys did circumscribe some authority of the courts to hear appeals of agency decisions to remove an inadmissible alien, but only for claims brought by or on behalf of an alien, and only in regards to an agency decision to “commence proceedings, adjudicate cases, or execute removal orders.” Neither applies to a situation where claims are brought by injured states and where the actions in question—the giving out of amnesty and federal benefits—do not arise out of the three discrete decisions the Supreme Court mentioned.
In late November of 2015, the U.S. Department of Justice appealed to the U.S. Supreme Court. In December of 2015, IRLI filed a brief opposing the government’s appeal (attached below), representing the Washington Alliance of Technology Workers, Local 37083 of the Communication Workers of America, AFL-CIO, an American tech workers union, and Save Jobs USA, an association of American tech workers. In its brief, IRLI argued that it would be premature for the Court to consider the appeal as the case was not fully developed, a mere grant of a preliminary injunction motion, when more fully developed cases were making their way through the courts.