In the dead of night, when much of Washington was already sleeping beneath a bed of snow, a Republican judge in Texas handed down a 123-page decision halting a key prong of President Obama’s recently announced immigration policy. The decision, which came less than two days before the federal government is scheduled to start accepting applications from immigrants seeking to benefit from the new policy, raises a cloud of uncertainty over the millions of immigrants expecting to seek relief under the policy. Yet this particular judge’s decision should surprise no one. Judge Andrew Hanen is a George W. Bush appointee whose past opinions left no doubt that he would leap at the opportunity to strike down a program benefiting undocumented immigrants.
Judge Hanen’s decision will undoubtedly grant political legitimacy to the legal arguments against the Obama administration’s policy. The real question, however, is whether other judges who have not displayed the same hardline attitude towards immigrants — in one opinion, Hanen labeled the government’s decision to allow an undocumented mother to be united with her child without facing criminal charges as a “dangerous course of action” — will follow Hanen’s lead. The Obama administration, and the millions of immigrants who hope to benefit from the administration’s policies, can take solace in the fact that two Republican members of the Supreme Court hinted as recently as 2012 that they do not share Hanen’s views.
Strong Legal Support For The Administration
Last November, President Obama announced a program that would allow approximately 4.9 million undocumented immigrants, the bulk of whom are parents of U.S. citizens or legal permanent residents, to remain in the country (at least temporarily). The new program was implemented through a memorandum signed by Homeland Security Secretary Jeh Johnson. Texas v. United States, challenged Secretary Johnson’s authority to implement this program in the first place.
The Supreme Court has spoken expansively regarding the executive branch’s discretion in immigration matters. “A principle feature” of the deportations process, according to the Court’s opinion in Arizona v. United States, “is the broad discretion exercised by immigration officials.” When confronted with an immigrant who is eligible to be removed from the country, “[f]ederal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
The Arizona opinion also implies that the executive branch may make categorical decisions that certain kinds of undocumented immigrants (such as workers with families) should be allowed to remain in the country while others (such as violent criminals) should be targeted for deportation. As the Court explained, “[d]iscretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.
Notably, Arizona was authored by Justice Anthony Kennedy and joined by Chief Justice John Roberts, both of whom are Republicans.
There is also an important practical reason why the executive must have discretion to target its resources towards certain undocumented individuals while effectively ignoring others — those resources are limited. According to the Justice Department, “there are approximately 11.3 million undocumented aliens in the country,” but the federal government only “has the resources to remove fewer than 400,000 such aliens each year.”
Congress’s decision to appropriate only a fraction of the funds the administration would need to remove every single undocumented person in the United States is itself a legislative judgment that most of these individuals will not be removed. As the Supreme Court explained in Heckler v. Chaney, “[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing,” so it necessarily must make judgments about how to target its resources. The question facing Judge Hanen ultimately boiled down to whether an agency may be explicit and systematic in carrying out these priorities.
Of Murderers And Prostitutes
Hanen’s opinion strongly suggests that the answer to this question is “no.” To Hanen, the administration’s decision not to crack down on certain immigrants while prioritizing others “is an announced program of non-enforcement of the law that contradicts Congress’ statutory goals.” The government, Hanen claims, “is ‘doing nothing to enforce'” the removal laws against a class of millions of individuals.” Such a policy, he claims, is “complete abdication.”
The flaw in Hanen’s analysis, however, is that it frames as “abdication” the kind of decision that law enforcement officials necessarily must make on a daily basis. At the most micro level, imagine that a beat cop is chasing two suspects down the street, when the two suspects split up at a fork in the road. If the cop takes the left fork, it is likely that the suspect who turned right will escape arrest entirely. Yet it would hardly be fair to accuse the cop of “abdicating” his responsibility to chase down both suspects. The cop simply faced a problem of limited resources — two suspects and only one set of legs — and he had to make a decision about priorities.
At a somewhat more general level, imagine that a police district experiences a rash of murders, and the police chief makes the decision to transfer the district’s vice squad to homicide duty. As a practical matter, this means that prostitution will continue largely unchecked by the police, but the chief hasn’t abdicated his responsibility to enforce prostitution laws. He has simply set priorities regarding which crimes the limited number of officers under his command shall target.
Secretary Johnson is much like this police chief. Rather than telling cops to target murderers and effectively look the other way regarding prostitutes, he is telling immigration officials to target certain undocumented individuals, such as serious criminals, while effectively looking the other way towards the law-abiding parents of citizens. But Johnson’s decision to target enforcement of laws, which permit deportations and bar undocumented workers from the workplace, involves the same kind of discretion exercised by the police chief. The secretary only has enough resources to target but so many immigrants, so he has set department-wide priorities.
Hanen’s opinion reads a great deal of significance into the fact that the Obama administration policy is unusually transparent. Rather than quietly instructing immigration officials to focus only on certain kinds of undocumented immigrants, the administration opted for an “announced program” that provides clarity to many immigrants regarding whether they will be subject to enforcement. But a police chief’s decision to transfer officers from vice to homicide typically does not become illegal simply because it is announced. And the Arizona opinion recognizes the executive branch’s power to decide that particular immigrants should not be subject to removal proceedings. It’s not at all clear why this power does not permit an executive that has decided that it will not bring deportation proceedings against an immigrant during the next few years to communicate this fact to the immigrant.
Anti-Climax And Implication
Though most of Hanen’s opinion appears to build towards a sweeping denouncement of the administration’s policies, the actual holding of his opinion is an anti-climax. For all of his rhetoric about “complete abdication,” Hanen ultimately claims that he is “not addressing” the plaintiffs’ substantive attacks on the immigration policy. Instead, he orders the program at issue in this case to be halted because it allegedly violates “procedural requirements” regarding what steps an agency must take to implement a substantive rule.
Technically, this means that the Obama administration could overcome Hanen’s order by jumping through an onerous — but hardly insurmountable — set of procedural hurdles. Yet Hanen’s opinion leaves little doubt that he is willing to go much further if pushed to do so.
The Obama administration’s program is not unique. To the contrary, both the Reagan administration and the George H.W. Bush administration offered similar relief — albeit on a smaller scale — to certain undocumented minors and to many “family members living with a legalizing immigrant.” The later program benefited approximately 1.5 million immigrants. Both programs are difficult to distinguish, as a legal matter, from the Obama administration’s programs.
Hanen, however, strongly implies that these programs were also illegal. “[P]ast Executive practice does not bear directly on the legality of what is now before the Court,” he writes, adding that “[p]ast action previously taken by the DHS does not make its current action lawful.”
Perhaps most ominously of all, however, Hanen repeatedly compares the program he halts in his opinion to the Deferred Action for Childhood Arrivals (DACA) program, a program President Obama announced in 2012 which already permits hundreds of thousands of young undocumented immigrants to work and to remain in the country. Though Hanen insists that, “with three minor exceptions, this case does not involve” DACA, many of the criticisms he levels at the more recently announced program would apply with equal force to DACA.
The Silver Lining
Ironically, however, the fact that Hanen’s opinion casts a cloud of doubt over the legality of DACA may be its most hopeful sign for undocumented immigrants. The Arizona decision did not simply emphasize the executive branch’s “broad discretion” over many immigration-related matters, it was handed down just days after Obama announced the DACA program. Indeed, Justice Antonin Scalia railed against DACA in his opinion dissenting from the majority in Arizona.
If a majority of the justices found DACA legally problematic, it would be very unusual for them to emphasize the scope of the executive branch’s discretion just days after President Obama announced the DACA program. It would be even more unusual for them to do so when one of their brethren specifically criticized that policy in dissent.
The fact that Hanen’s logic appears to extend to DACA, in other words, may be Hanen’s undoing. A majority of the Supreme Court, including two of the Court’s Republicans, have already hinted that Hanen’s opinion is wrong.