Obama Reply Raises The Stakes For SCOTUS: Texas is Flat Out Wrong on Immigration Law

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Yesterday the Obama administration filed a very powerful reply brief in the case of United States v. Texas, the Republican challenge to DAPA and DACA expansion, which will be argued before the Supreme Court on April 18th. The brief not only debunks many of the arguments offered by the GOP, it calls them flat out wrong. The brief from the U.S. government also again reminds the Supreme Court of the judicial chaos that will ensue if Texas is granted standing.

In essence, the Obama administration raised the stakes for the Supreme Court even higher with this brief. Since the beginning of this case, Texas and the other Republican Governors and Attorneys General have been using the federal courts to push their anti-immigrant political agenda. What the Obama administration exposed is that the brief submitted by Texas is not coherent, does not accurately portray the deferred action guidance under review — and is just plain wrong on immigration law.

The Obama administration asserted that the “crux” of the GOPs claim — that DAPA and DACA+ confers the right to remain lawfully in the U.S. — “is simply wrong.”

While describing another’s argument as wrong may be commonplace in political discourse or in day-to-day conversation, that’s very strong language in a Supreme Court brief and I believe it’s meant to underscore the point to the Justices. The Administration argued on page 15 of its Reply:

Respondents are fundamentally wrong to claim that the Guidance confers on aliens whose presence Congress has deemed unlawful the right to remain lawfully in the United States. Aliens covered by the Guidance, like all aliens afforded deferred action, are violating the law by remaining in the United States, are subject to removal proceedings at the government’s discretion, and gain no defense to removal….Deferred action itself reflects nothing more than a judgment that the aliens’ ongoing presence will be tolerated for a period of time, based on enforcement priorities and humanitarian concerns, and work authorization enables them to support themselves while they remain.

Importantly, the Reply brief cogently explains why Texas’s claim that deferred action bestows “lawful presence” on an undocumented immigrant — a misguided assertion which grew out of Judge Hanen’s legally sloppy opinion blocking DAPA and DACA+ — is based on a “mistaken premise.”

Respondents insist that the Guidance “declares” unlawful conduct to be lawful. But the Guidance does no such thing. Respondents primarily rely on a single sentence in the Guidance, which states that “[d]eferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” That sentence is purely descriptive and has no operative, legal effect. Deleting it would not change the Guidance at all.

“Lawful presence” in immigration law, so the Administration explains on page 16 of its Reply, is fundamentally different from lawful immigration status:

Aliens with lawful status under the INA are here lawfully; their presence therefore is not a basis for removal. By contrast, mere “lawful presence” occurs when the Executive “openly tolerate[s] an undocumented alien’s continued presence in the United States for a fixed period (subject to revocation at the agency’s discretion),” notwithstanding that the alien lacks lawful status and is present in violation of law… “Lawful presence” thus might be better called “tolerated presence.” Even with deferred action and “lawful presence,” aliens lack lawful status, are actually present in violation of law, are subject to enforcement at the government’s discretion, and gain no defense to removal… The Guidance changes none of that.

Citing a law review article by Professor Anil Kalhan, the U.S. points out that the concept of “lawful presence” does not exist as a legal concept in the sense that Hanen, the 5th Circuit, and the GOP in its brief use it. “Moreover,” the Administration argues, there is no overarching and unified concept of “unlawful presence” that triggers a “coherent aggregated package of ancillary ‘benefits.’” As I pointed out in a previous post, Hanen, later followed by the 5th circuit, took the concept of “unlawful presence” — a legal term of art which specifically refers to noncitizens who entered the country illegally, overstayed their authorized period of stay, were found to be out of status or (in certain circumstances) worked without authorization — and proceeded — without any statutory authority whatsoever — to claim that noncitizens who had been accruing “unlawful presence” were rendered “lawfully present” by DAPA or DACA+. Therefore, so Hanen claimed, the President’s immigration executive actions unlawfully transformed an unlawfully present noncitizen into a noncitizen with lawful immigration status. This was (and is) wrong as a matter of law.

The GOP is also wrong that that the law does not permit the Department of Homeland Security to Grant Employment Authorization to DAPA and DACA+ Recipients.

In their brief, the Republicans argued to the Supreme Court that the law does not permit the DHS to grant employment authorization to deferred action recipients, other than in four specific categories authorized by statute–U visa applicants, family members of lawful permanent residents killed in the September 11 terrorist attacks, family members of U.S. citizens killed in combat and Violence Against Women Act (VAWA) applicants. On page 22 of its Reply, The Administration directly answers this patently incorrect argument explaining that the DHS regulation authorizing work authorization for deferred action recipients dates back nearly two decades:

Respondents are equally wrong to argue (Br. 51 n.39) that DHS’s regulation specifically allowing aliens with deferred action to apply for work authorization is valid only for “the four categories of deferred action recipients that Congress made eligible for work authorization,” and that this argument is timely because it did not accrue until now. When that regulation was promulgated in 1981 and repromulgated in 1987, deferred action was exclusively accorded “without express statutory authorization.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (AADC). The statutes mentioning “deferred action” were enacted beginning in 2000. In respondents’ view, DHS’s regulation thus applied to a null set for nearly 20 years. That cannot be correct.

The Reply makes clear that the GOP’s theory of “standing” in this case would result in Judicial Chaos.

On page 9–10 the Administration argues to the justices that upholding the misguided decisions of the lower courts will have ramifications well beyond immigration law and policy. Indeed, so the Administration argues, allowing individual states to challenge the executive’s discretionary policy decisions based on incidental effects — such as the GOP’s claim that DACA and DAPA+will increase the cost of driver’s license issuance to Texas — would open the door to a floodgate of politically motivated lawsuits challenging a myriad of presidential policies. The result would be judicial chaos, threatening America’s very constitutional structure.

Respondents’ theory of standing would also permit States to challenge changes to the federal definition of “disabled veteran,” “adjusted gross income,” or “poverty,” or any other federal standard — so long as the State has linked its fisc to that standard. U.S. Br. 32. Indeed, if the Court were to find standing based on incidental impacts on the state treasury even without such a link, virtually any change in federal policy could prompt an Article III dispute. The judicial power would then extend to “almost every subject on which the executive could act,” “[t]he division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.” DaimlerChrysler, 547 U.S. at 341 (quoting 4 Papers of John Marshall 95 (Charles T. Cullen ed., 1984)).

Interestingly, the Administration’s Reply appears to include the legal version of an important point made by former N.Y. Times Supreme Court Reporter Linda Greenhouse in an op-ed she wrote on November 12, 2015. Greenhouse wrote:

The claim of Texas and its allies to standing is preposterous. The Fifth Circuit majority found that the state’s concrete injury lies in the fact that some 500,000 undocumented Texas residents would be entitled under the deferral program to obtain drivers’ licenses, and the state, which charges $25 for a six-year license, would lose “a minimum of $130.89” on each license. “Even a modest estimate would put the loss at several million dollars.” Hmmm. My own user-friendly state of Connecticut charges $66 for an ordinary driver’s license and offers undocumented immigrants a drive-only license (legal authorization to drive, but not to be used for identification) for a $72 fee. I guess the great state of Texas would rather fight the federal government than figure out how to balance its motor vehicle department’s books.

The Administration reply transforms the point into a powerful legal argument for the Court:

To the extent that respondents assert injury to a quasi-sovereign interest in Texas not feeling “pressure” to change its policies, that alleged injury is entirely speculative, and not concrete, particularized or certainly impending. Texas’s current policy is embodied in its existing laws and Department of Public Safety (DPS) policies. Texas chose to subsidize licenses for all eligible individuals, including deferred-action recipients and many others, because it believed the benefits of doing so outweigh the costs. Texas is free to alter those judgments in any number of ways. See U.S. Br. 25–26. But Texas has not changed its policies in response to the Guidance (or in response to the 2012 DACA policy). And it is impossible to know what change, if any, the Texas legislature or DPS might make in the future, what the basis for any such change might be, or whether federal law would preempt that choice. See Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (“Allegations of possible future injury” are insufficient.); Dellinger Amicus Br. 19–24.

The point being, that any alleged injury about which the Texas Republican politicians claim the State of Texas will suffer because of DAPA and DACA+ is guess work and, in any event, self-inflicted.

The Obama administration used its reply brief to eviscerate several of the claims made by the Attorney General of Texas on behalf of the other GOP Governors and Attorneys General. What comes across is that the Texas Attorney General does not fully understand immigration law. And, that would comport the reality that this case was never about immigration law, but is really a political assault under the guise of a lawsuit.

That worked for Texas in Judge Hanen’s court. But, the Supreme Court expects a much higher degree of professionalism and understanding of the law. Chief Justice Roberts has made it clear he does not want his court to settle political fights. The Obama administration’s reply brief raises the stakes for Roberts and his colleagues.