And so it begins. Republicans have been clamoring about the illegality of President Obama’s announced immigration priorities since long before he stepped in front of the cameras last month. Yesterday they took a crucial first step toward forcing a court to decide whether they’re correct. Led by Texas Governor-elect Greg Abbott, currently the state’s Attorney General, seventeen states and four governors sued the federal government in an attempt to stop implementation of the Administration’s immigration enforcement strategy. Complaint for Declaratory and Injunctive Relief, State of Texas v. United States, No. 1:14-CV-00254 (S.D. Tex. Dec. 3, 2014).
The lawsuit filed in the federal district court in Brownsville, Texas, claims that President Obama’s move violates the Constitution’s Take Care Clause and the Administrative Procedure Act (APA). The Take Care Clause obligates the president to “take care that the laws be faithfully executed,” while the APA governs the process by which administrative agencies create binding legal rules. Neither strikes me as a strong legal claim, but the states did file the lawsuit in a very strategic location with a judge who has previously lashed out at the Administration for its immigration practices so it’s possible that it will have stronger legs than the merits of the legal claim suggest on their face.
First for the legal claims. The states’ constitutional challenge essentially rehashes many of the pre-announcement claims that President Obama lacks the authority to provide temporary relief from prosecution for people who meet specified criteria. Because many others have tackled this claim head-on (see here, here and my own discussion here), there’s no need for me to repeat it. The gist, of course, is that President Obama—like numerous presidents before him—have wielded the power of law enforcement to target the federal government’s limited investigative and prosecutorial resources as they deem best. Whether or not I like their determinations—and I have frequently and harshly criticized how President Obama has chosen to use the government’s resources—doesn’t mean he doesn’t have the prerogative to make those decisions.
The Take Care Clause complicates this picture a bit, but not in a way that strikes me as particularly problematic. The Constitution doesn’t make the President a lackey of congressional will. That is, the President isn’t required to thoughtless enforce all statutes enacted by Congress. Sometimes there are countervailing considerations—for example, where criminal prosecution might complicate foreign affairs. At other times there are resource constraints—we simply aren’t willing to spend the money it would take to prosecute every violation of federal civil or criminal laws (imagine an airport in which every customs official arrested everyone caught with prohibited fruit or plants instead of simply confiscating them and sending the traveler on her way).
Immigration law enforcement implicates both concerns. There are many moral considerations that suggest trying to remove everyone found inside the United States in violation of immigration law isn’t justifiable. And even though we spend roughly $18 billion per year enforcing immigration laws, there are similarly significant constraints on the immigration law enforcement communities’ resources. The U.S. Supreme Court has recognized this reality as recently as 2012. In Arizona v. United States, 132 S. Ct. 2492, 2499 (2012), the case concerning Arizona’s infamous S.B. 1070, Justice Kennedy wrote “A principal feature of the removal system is the broad discretion exercised by immigration officials. …Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
Years earlier, a unanimous Supreme Court wrote, “This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion…. The agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing.” Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). This opinion was written by the late Justice Rehnquist.
Congress could, of course, require total enforcement of immigration laws by enacting a statute that says as much or providing enough funding to do so, but it hasn’t done either. If the court were to adopt the position that the states advocate, the Obama Administration’s immigration priorities wouldn’t be the only issue on the table. The Administration has promised to turn a blind eye to the rampant criminal activity boosting the economies of Colorado (where I live) and Washington in the form of marijuana sales and use. That would all come tumbling down rather quickly as U.S. Marshals and DEA agents stormed dispensaries throughout Denver.
Second, the states’ administrative law argument fails to appreciate the distinction between binding legal directives and agency guidance documents. While the former are subject to notice-and-comment rulemaking procedures, the latter are not. The states argue that the series of memos that various DHS officials released to coincide with President Obama’s announcement last month constitute formal rules. Though the distinction between the two categories is sometimes murky and depends on a multi-factor test, it’s clear that the DHS memos do not provide an “entitlement to relief” as the states claim. Complaint at ¶ 55. At best, they provide field officers with clearly articulated criteria to apply to individual applications. By publicizing these documents on the internet, they also inform attorneys and prospective applicants. This helps weed out poor candidates, but it doesn’t mean that field officials have their hands tied as the states claim. Id. at ¶ 25. Indeed, the latest government data indicate that 32,400 applications were denied.
The states also face the difficult task of overcoming a potential standing problem. Standing is the legal term that describes whether a party can even wage a lawsuit. A party must have actually suffered an injury resulting from actions taken by the named defendant; a simple grievance amounting to nothing more than “I wish you would do more to enforce the laws” isn’t enough. Courts are notoriously strict when it comes to standing for amorphous constitutional commands like the broadly worded constitutional language of the Take Care Clause.
Despite these shortcomings with the states’ legal arguments, it’s important to note that the states chose the court very well so as to boost their chances of winning. Rather than lodge their claim in Washington, D.C. or even Austin—two more likely venues for high-profile litigation that could, as a legal matter, be lodged basically anywhere—the states chose the federal district court in Brownsville, Texas. Though they imply that they did so because the “wave of immigration” that we witnessed over the summer—and for which they blame President Obama’s immigration policies—“has ben concentrated” in this part of Texas, id. at 35, the reality is that if that had been their concern they would have filed in McAllen, just up the road from Brownsville and closer to the center of most of these migrant crossings.
A two-page summary of a non-precedential order by Judge Andrew Hanen better explains why they filed in Brownsville. Judge Hannen’s order in United States v. Nava-Martinez, No. 1:13-cr-00441 (S.D. Tex. Dec. 13, 2013), lashed out at the Obama Administration for allowing a ten-year-old child who was brought to the United States without authorization by a person later convicted of human smuggling to reunite with her mother, a woman living in the United States without authorization. Though neither the mother nor child were charged with any crime, Judge Hanen took the highly unusual step of focusing all but one paragraph of a ten page order on them. Among the many aspersions that Hanen cast at the federal government, he claimed that “[i]t completed the mission of the conspiracy” initiated by the child’s mother and “instead of enforcing the laws of the United States, the Government took direct steps to help the individuals who violated it.” Judge Hanen, to say the least, is no fan of the Administration’s immigration practices.
The states are clearly well aware of Judge Hanen’s position. Pages 9 and 10 of the Complaint are largely devoted to Hanen’s order. I’m not exactly sure how this is relevant to the Take Care Clause or APA, except that the states are hoping for a receptive audience. According to the district court’s docket, the case has been assigned to Judge Hanen so perhaps they will receive one after all.
Update: I have posted follow-up documents filed before the district court and U.S. Court of Appeals for the Fifth Circuit here.
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