The Strange Career of United States v. Texas

The Republican plaintiffs’ shifting arguments reveal their lawsuit to be a political attack in search of a legal rationale

By Anil Kalhan

When the justices of the Supreme Court deliberate over the issues in United States v. Texas, the Republican lawsuit seeking to invalidate the Obama administration’s immigration initiatives, they would do well to reflect upon just how far the arguments that the plaintiffs have presented to them diverge from those that were presented to Judge Andrew Hanen in the Southern District of Texas when the lawsuit was originally filed.

The plaintiffs now aggressively emphasize “lawful presence” as the primary supposed effect of both the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative that they seek to invalidate and its predecessor, Deferred Action for Childhood Arrivals (DACA). DAPA is unlawful, they argue, primarily because it “affirmatively grants lawful presence and eligibility for work authorization, as well as a host of other benefits.” Like Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit, who affirmed the district court injunction that blocked DAPA, the plaintiffs thereby characterize the phrase “lawful presence” as a formal immigration status or a legal classification with some sort of overarching, unitary, and coherent meaning, across the various legal provisions where similar (but not always identical) language is used.

The plaintiffs insist that by allegedly granting an aggregated, intertwined package of legal rights and benefits, which they refer to as “lawful presence,” the administration is “unilaterally declaring unlawful conduct to be lawful” — and indeed, on the very same basis, might even be tempted to go further by “granting millions of aliens lawful permanent residency or even citizenship.”

As I have previously explained — and as both the government and intervenors effectively elaborate in their Supreme Court reply briefs — these arguments about “lawful presence” are ultimately a charade. However, it is also strange that any of us are talking about “lawful presence,” eligibility to apply for employment authorization, and some of the other issues that the plaintiffs now foreground before the Supreme Court at all — because for the most part, the plaintiffs did not make any of those arguments in the district court. How did this case morph into what it has now become?

When the plaintiffs originally filed their lawsuit in December 2014, their main objection was that DAPA created a “de facto entitlement” amounting to a “unilateral[] suspension of the Nation’s immigration laws.” Echoing political accusations that the deferred action initiatives amounted to “executive amnesty,” the plaintiffs alleged that the administration was improperly seeking to “legalize” millions of undocumented immigrants by executive decree despite Congress’s refusal to legislatively enact the legalization provisions of either the DREAM Act or comprehensive immigration reform.

(Somewhat oddly, the complaint also incorporated wild allegations, drawn from an irregular, emotionally charged 2013 opinion by Judge Hanen, that accused the Obama administration of adopting a policy of “completing the criminal mission of individuals who are violating the border security of the United States.” But let’s leave the plaintiffs’ warm embrace of Judge Hanen’s trumpisprudence to one side.)

In support of this claim, the plaintiffs made two main arguments. First, the plaintiffs argued that DAPA would “operate . . . as an entitlement to relief for virtually every applicant who meets DHS’s eligibility criteria.” Whatever authority officials might have to exercise individualized discretion to forbear from enforcement action, the plaintiffs argued, that authority did not encompass a power to unilaterally adopt a policy of “non-enforcement that applies across-the-board.” The plaintiffs highlighted advice by the Department of Justice that the initiatives would be lawful only if applications “were reviewed on a case-by-case basis.” A “class-based deferred action program,” the plaintiffs argued, required congressional approval that was lacking for DAPA, implicitly in part due to the large number of individuals who ultimately might end up becoming eligible to apply for deferred action under DAPA’s eligibility criteria.

Although the guidance document establishing DAPA unequivocally requires officials to exercise individualized, case-by-case discretion before granting deferred action, the plaintiffs insisted that was a sham. Primarily based on allegations that approval rates under DACA, the earlier initiative, were suspiciously too high — leading DHS to “all-but-automatically” approve applications — the plaintiffs alleged, necessarily by way of speculative prediction, that DAPA, the new program, would also operate as a “de facto entitlement,” in which DHS would “continue rubber-stamping applications” in a manner “divorced from individualized, case-by-case enforcement discretion.” (As Prof. Shoba Sivaprasad Wadhia observes, under this logic “I could determine whether my five-year-old is completing his homework based solely on my eight-year-old’s completion rate.” More fundamentally, even for DACA itself high approval rates cannot by themselves establish that discretion is not being exercised or that meaningful procedures do not exist.) The plaintiffs pointed to these same allegations about the supposedly rubber-stamp-like nature of DAPA in support of its claim that the guidance amounted to a “legislative rule” for which officials were obligated to use notice-and-comment rulemaking under the Administrative Procedure Act.

Second, the plaintiffs argued that DAPA breached “a mandatory duty” under the immigration laws to detain and initiate removal proceedings against every potentially deportable noncitizen that officials encounter. The plaintiffs argued that this “mandatory duty” obligated executive branch officials to pursue the “removal of any undocumented immigrant present in violation of federal law, unless Congress provides a specific exception.” (This same argument was more prominently at the heart of an earlier, unsuccessful challenge to DACA filed by several ICE officers. In the context of discussing that previous lawsuit, Prof. David Martin, a senior immigration official under both the Clinton and Obama administrations, has effectively demonstrated why the argument lacks merit.)

Where did the conception of “lawful presence” that the plaintiffs now emphasize fit into their arguments to Judge Hanen back then? Pretty much . . . nowhere. When their complaint alleged that DAPA involves a “unilateral exercise of lawmaking” that “purports to legalize the presence of approximately 40% of the known undocumented-immigrant population,” it referred to “legalization” colloquially, as equivalent in meaning to granting lawful immigration status — not as if it were akin to the conception of “lawful presence” later fashioned by Judge Smith. In two other places, the complaint more narrowly described “tolling of unlawful presence” as a discrete collateral legal consequence that might accrue to recipients of deferred action — but presumably for the sole and limited purpose of 8 U.S.C. 1182(a)(9), the only relevant statutory provision for which it would make any sense to speak of that kind of “tolling.” The complaint also noted that Texas and other plaintiffs rely on evidence of “lawful presence” furnished by the federal government when determining eligibility for certain state benefits — but without describing or defining “lawful presence” itself or suggesting that it somehow inheres in deferred action.

And that’s pretty much it. Only one stray line in the plaintiffs’ preliminary injunction motion — asserting that “Congress has enacted a specific and finely tuned statutory scheme limiting the lawful presence of undocumented parents of U.S. citizens” — came anywhere close to suggesting that the phrase “lawful presence” was relevant to their arguments at all. And even there, the plaintiffs used that phrase in passing and without explanation — and without suggesting any different meaning of that phrase from the many other places where, in alleging that President Obama was trying to “legalize the presence” of millions of undocumented immigrants, they accused him of granting the same lawful immigration status by decree that Congress had declined to authorize by enacting either the DREAM Act or comprehensive immigration reform.

At no point did the plaintiffs ever argue that “lawful presence” exists as a formal “immigration classification established by Congress” that is distinct from lawful immigration status. In fact, when they referred to “lawful presence” during oral argument before Judge Hanen, they asserted that there were “approximately 27 separate statutory provisions” governing “lawful presence” of undocumented immigrants — again reflecting a legally imprecise, colloquial understanding of “lawful presence” as equivalent to lawful immigration status, not the conception later fashioned by Judge Smith of a formal legal “immigration classification” distinct from lawful status. In the reply brief in support of their preliminary injunction motion, the plaintiffs similarly treated “lawful presence” as equivalent to lawful status.

Judge Hanen’s word salad on “legal status” and “legal presence”

It should hardly have been surprising, therefore, that when Judge Hanen granted the plaintiffs’ motion for a preliminary injunction in February 2015, he followed the plaintiffs’ lead by repeatedly conflating and using the terms “legal presence” and “legal status” interchangeably. In a number of especially jumbled instances, he even mashed them up into what he called “legal presence status” — a wholly made-up concept with no legal meaning at all.

The plaintiffs similarly showed little interest in their arguments to the district court in the legal authority governing temporary employment authorization for deferred action recipients — legal authority, incidentally, in which the concept of “lawful presence” plays no role at all. In their complaint, the plaintiffs faulted the Obama administration for permitting deferred action recipients under DAPA to apply for employment authorization, but without referencing or considering the statutory and regulatory authority that actually governs work authorization for those individuals. Instead, they treated work authorization as inextricably intertwined with the guidance announcing DAPA itself. The plaintiffs discussed that authority for the first time only in their district court reply brief — where the discussion reads as if they did even know about that authority until the government pointed it out.

In turn, Judge Hanen also showed no interest in the legal authority governing work authorization. To the extent that he expressed concern about any collateral legal rights and benefits that might result from deferred action, he treated those collateral consequences as inextricably intertwined with deferred action itself — thereby enabling his false characterization of deferred action under DAPA as something other than the exercise of enforcement discretion.

Contrast these arguments with those the plaintiffs now urge upon the Supreme Court. Evidently, the plaintiffs no longer consider forbearance from enforcement action for individuals eligible for DAPA to be inconsistent with the immigration laws — even, perhaps, on a categorical basis. Their brief concedes that Congress has delegated sweeping authority to executive branch officials to establish enforcement policies and priorities, and they emphasize that they no longer challenge the particular administrative guidance memorandum reflecting the manner in which the Obama administration has chosen to delineate those priorities. The plaintiffs also concede that the exercise of enforcement discretion in the form of deferred action itself — at least as properly understood — poses no problem, asserting (albeit incorrectly) that Judge Hanen’s sweeping injunction “does not affect the Executive’s enforcement discretion.” The plaintiffs even concede that officials are “free . . . to issue ‘low-priority’ identification cards” to every noncitizen eligible for deferred action under these initiatives if they wish to do so.

None of these concessions are consistent with the plaintiffs’ previous arguments that executive branch officials have a “mandatory duty” to initiate removal proceedings against all potentially deportable noncitizens and may not exercise prosecutorial discretion to forbear from initiating removal proceedings. They certainly are not consistent with the sweeping injunction that Judge Hanen issued, which does not simply enjoin the government from providing work authorization or any other collateral benefits, but blocks DAPA in its entirety — including forbearance of enforcement action in the form of deferred action and the government’s internal processes for structuring those discretionary decisions.

What the plaintiffs now urge instead, as a newfound mantra, is that deferred action under DAPA constitutes a “grant of lawful presence.” The plaintiffs no longer use that phrase in the colloquial manner in which they used similar phrases in the district court — usage that would be quite obviously incorrect, as a legal matter, insofar as it conflates “lawful presence” and “lawful immigration status.” Rather, like Judge Smith, they mean instead to refer to some sort of unitary, formal immigration classification that has been established by Congress, but that is nevertheless also somehow distinct from lawful immigration status. However, as I have previously explained, no such formal immigration law classification actually exists in the manner in which the plaintiffs claim it does.

The aggressiveness with which the plaintiffs now press this argument is remarkable given that “lawful presence” played virtually no role in their arguments to Judge Hanen. In contrast to the one stray, unexplained reference to the phrase in the district court — which carried an entirely different meaning from the manner in which they use the phrase now — the plaintiffs’ Supreme Court brief contains dozens of references to “lawful presence” in the manner in which Judge Smith introduces and uses that phrase.

Other opponents of DAPA, including several of the plaintiffs’ amici, have followed the plaintiffs’ lead by putting a lot of their eggs in the “unlawful presence” basket handed to them by Judge Smith. As Prof. Marty Lederman has noted, the same argument plays a prominent role in the briefs filed by several of the plaintiffs’ amici. For its part, even the Federalist Society has produced a fancy video (excerpted above) which purports to be a neutral explainer of the issues in United States v. Texas, but which embeds and prominently displays this incorrect characterization of what “lawful presence” entails as if it were simply uncontroversial, factual truth — rather than a controversial and contested assertion, at an absolute minimum, that was pretty much invented by Judge Smith for the first time on appeal before the Fifth Circuit. (Even on its own terms, the video gets its facts wrong, insofar as it characterizes work authorization as flowing from “lawful presence” — which even Judge Smith and the plaintiffs have been careful not to claim.)

In this context, it is amusing to see the plaintiffs object in their Supreme Court brief to “shifting arguments” that the government supposedly did not make in the lower courts. The plaintiffs’ own approach to this litigation, in fact, has mostly involved “shifting arguments.” The most significant arguments that the plaintiffs now urge upon the Supreme Court were nowhere to be found when they originally presented their claims in the district court.

Which tells us something. I’ll leave it to experts on appellate procedure to consider whether or not the plaintiffs have formally waived their arguments about “lawful presence,” employment authorization, and collateral rights and benefits for recipients of deferred action because they did not adequately present those arguments to the district court in the first instance. For her part, U.S. Circuit Judge Carolyn Dineen King, dissenting from Judge Smith’s majority opinion in the Fifth Circuit, expressly concluded that the plaintiffs had indeed waived some of these arguments by not raising them in the district court. She might well be correct; I myself don’t have a strong view on the matter.

More interesting and significant may be what the plaintiffs’ lurching about to make entirely new legal arguments on appeal says about this case more generally. From the moment it was filed — in a fairly transparent but successful effort at forum shopping — United States v. Texas has been a deeply politicized lawsuit, one whose central allegations diverge dramatically from the basic factual and legal realities concerning the Obama administration’s initiatives. In many ways, the arguments that the plaintiffs now urge concerning “lawful presence” represent the apotheosis of that politicized “judicial truthiness.” That those arguments have been discovered and advanced only on appeal offers further support for the widely shared conclusion that this lawsuit constitutes a political attack in search of a legal rationale.

Anil Kalhan is an Associate Professor of Law at Drexel University. His writings on the issues in United States v. Texas have appeared in publications including the UCLA Law Review Discourse, Yale Journal on Regulation Notice & Comment, and Washington Monthly. A version of this essay appears at Dorf on Law.

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Anil Kalhan, The Strange Career of United States v. Texas, Dorf on Law, Apr. 18, 2016,