Recently law professors from around the country published a statement calling Judge Hanen’s decision to enjoin President Obama’s amnesty decrees “deeply flawed” and legally suspect. The professors targeted several passages from the February 16 opinion, including the question surrounding the Executive’s purported authority to apply deferred action on a mass scale. As Judge Hanen stated in his decision, “[t]he government must concede that there is no specific law or statute that authorizes DAPA.” But, say the professors, “the government need not concede anything here, because there is strong legal authority for deferred action in general, and for DAPA and DACA in particular as forms of deferred action.” (emphasis mine). Claiming deferred action needn’t have any statutory basis, the professors cite a Supreme Court decision from 1999, Reno v. American Arab Anti-Discrimination Commission. To claim this decision gives full enforcement-discretion to the Executive, however, is, in the words of attorney David Rivkin in recent congressional testimony, “flat-out wrong.”
The linchpin of the professors’ argument is a single line from the 21-page majority opinion in Reno uttered by Justice Scalia peripheral to the case’s actual holding (mere ‘dicta’ in legal terms): “Congress has acquiesced to, and even endorsed the use of, deferred action on removal of undocumented immigrants by the executive branch on multiple occasions.” But context is key and what the case actually decided is conveniently left out of the professors’ letter. The plaintiffs in Reno were members of a Palestinian-based, designated terrorist organization who had been ordered deported by the INS. ACLU attorneys for the group argued Congress had authorized through the Immigration and Naturalization Act that INS decisions to deport could be subject to judicial review. The INS’s refusal to defer their deportations the group further claimed was discriminatory.
The majority of the Supreme Court, led by Justice Scalia, disagreed, ruling that amendments made to the INA in 1996 were “clearly designed to give some measure of protection to [decisions refusing to grant deferred action]” and that “Congress didn’t want federal courts entertaining discrimination lawsuits from deportees based on a failure to grant deferred action.” The INS, they decided, could refuse to apply deferred action status to otherwise deportable aliens and those decisions along with any attendant discrimination claims could not be reviewed by the courts. As Rivkin explained to the congressional panel, “[t]he case merely acknowledged that Congress didn’t want federal courts entertaining discrimination lawsuits from deportees based on a failure to grant deferred action in a particular instance.” In direct conflict with what the professors assert in their letter, Rivkin concluded: “[the Supreme Court] didn’t consider or endorse the legality of the broader program of deferred deportation itself.” – For a general history of deferred action read a friend-of-the-court brief from the Immigration Reform Law Institute here.
Self-described liberal law professor and immigration attorney, Peter Margulies, agrees. In a recent law review article, Margulies scolds “OLC and supporters” for having placed so much emphasis in their “justification” of DAPA on mere dicta from Justice Scalia in what was really a decision about court jurisdiction. Margulies writes that the court’s decision was rooted in protecting the Executive’s discretion in setting enforcement priorities so that the deportation process would not be elongated nor the immigration law framework undermined by groups like the ACLU. Deciding otherwise, he writes, would have created “the potential for piecemeal litigation”, which was “antithetical” to Congress’s intent to avoid, as Scalia wrote, “separate rounds of judicial intervention outside [the INA’s] streamlined process.” “To head off this train wreck”, Margulies concludes, the court found that Congress intended to “shield certain individual discretionary decisions from judicial review.” (emphasis added).
Peripheral to the case’s holding, Justice Scalia did observe that narrow, individualized applications of deferred deportations could support efficiency in the INS’s administrative process. The single case he mentioned in relation to this is worthy of mention as it completely fails to relate to what the law professors are arguing for. In Johns v. Department of Justice, deportation was deferred for a five-year-old Mexican girl who was in the middle of a custody battle between two American citizens who were trying to adopt her and the girl’s mother, a Mexican national. Deportation would have impaired resolution to the dispute and the INS deferred it until the girl could be sponsored for a visa (which she would’ve inevitably received if adopted). As Margulies writes, this is the “narrow, hardship-based conception of executive discretion” reflected in Scalia’s opinion. In other words, his opinion did not reflect a broad, categorical view exemplified by DAPA which the law professors are asserting.
Moreover, Scalia made sure to describe deferred action as allowable only on an individualized-basis. As he wrote in the opinion:
“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… A case may be selected for deferred action treatment at any stage of the administrative process. Approval of deferred action status means that, for the humanitarian reasons described below, no action will thereafter be taken to proceed against an apparently deportable alien, even on grounds normally regarded as aggravated.”
Oddly, the professors seem to say as much when they write that the “[Supreme Court] explicitly recognized “deferred action” as a form of prosecutorial discretion—namely, a choice to interrupt or abandon efforts of trying to deport someone by offering them temporary protection from deportation.” (emphasis mine).
The real issue before the Reno Court was about the ‘court-stripping provisions’ of the INA and whatever affirmation the court gave to extra-statutory grants of deferred action were (a) on a limited, individualized basis and (b) mere dicta. Even case summaries from the DOJ, which defended the suit, and the ACLU, which brought the suit, all show that the issues presented to the court were narrow and procedural and not about whether deferred action could be granted in any way President Obama now wants.
Still, the case has had major implications. It laid the rickety foundations for Clinton INS Commissioner, Doris Meissner’s agency-wide memo which created mass deferred action out of thin air and asserted that applying it to whole categories of aliens would be immune to judicial review. This is what Obama’s DOJ is now trying to push on Judge Hanen.
Reading through the professors’ letter one finds a total lack of description of the actual case they put so much stock into. Instead of case law or statutory and regulatory provisions, they mostly cite each other’s law journal articles. It is the work of immigration anarchists in academia, not Judge Hanen’s 123-page opinion, that should be seen as “deeply flawed.”