DAPA and the fog of (political) war

As some of the readers of this Blog may have noticed, I have been interested in chronicling (or at least, following) the much-embattled executive Action known as DACA (“Deferred Action for Childhood Arrivals”).  See my previous post—>  Happy Birthday, DACA!  I did make mention in that post of the current legal quagmire that DACA’s companion executive Action, DAPA (“Deferred Action for Parents of Americans and Lawful Permanent Residents”), finds itself in.  At this moment, the case and the fate of DAPA hang in the balance pending a final decision from the 5th Circuit Court of Appeals.

I thought some of our readers would find it worthwhile to be given 1. a detailed chronology of the litigation with clear signposts explaining how we all got to this current state of entropy AND 2. a primer on the various legal arguments set forth by the parties in justifying either a striking of the injunction or its affirmance.


On February 16th, just 2 days before the directive was set to take effect, the Federal District Court for the Southern District of Texas issued, by way of Memorandum Opinion, an injunction against DAPA.  The Department of Justice promptly appealed the injunction to the Fifth Circuit Court of Appeals.  See http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/30/immigration_ca5_-_us_pi_brief.pdf .  As an emergency motion to the full appellate challenge, DOJ requested either a. a stay on the injunction pending the appeal (which would have permitted DAPA to have least gone into temporary effect) OR b. a narrowing of the scope of the injunction.  See  http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/12/stay_motion_filed_0.pdf .  In a split decision, a 3-judge panel of the 5th Circuit Court of Appeals, on May 6th, declined to do either; furthermore (in what may be the most significant harbinger of bad news for DAPA to date) that 2-judge majority held that the United States is not likely to prevail on the merits of its appeal.  See  http://www.ca5.uscourts.gov/opinions/pub/15/15-40238-CV0.pdf . Oral arguments on the appeal were held on July 10th. See  http://www.ca5.uscourts.gov/oral-argument-information/oral-argument-recordings .


This litigation is party-heavy, to say the least.  On either side of this dispute are arrayed a formidable list of state-actors, civil organizations, and law firms – all indicating the high-stakes nature of this issue.  The plaintiffs-proper who brought the injunction Action are 29 states of the Union and/or their governors.  The defendants are the respective heads of the Department of Homeland Security, U.S. Customs and Border Protection, the U.S. Customs and Immigration Services and U.S. Immigration and Customs Enforcement.  Moreover, this litigation has produced a great number of friends of the court, filing briefs in support of either side.  Among the amici are [for the Appellants] a. a group of more than 180 state representatives to Congress; b. a coalition of U.S. mayors; c. a group of 4 U.S. senators; d. a group of 15 states and the District of Columbia; e. a group of more than 30 police chiefs and sheriffs from across the United States; f. a coalition of more than 500 civic/civil liberties organizations; [for the Appellees] a. a motley (but significant) collection of members of the U.S. Congress along-side the American Center for Law & Justice and the Committee to Defend the Separation of Powers; b. a group calling itself “State Legislators in Support of Legal Immigration”.


The various legal arguments constituting the Appellants challenge to the injunction and Appellee’s support of same are dense and multi-faceted.  However, I will provide a brief overview of some of the highlights on either side.

Appellees: The initial complaint brought before the Federal District Court alleged that DAPA is, first, unconstitutional for violating the so-called “Take Care Clause” of the U.S. Constitution.  Art. II § 3 cl. 5.  Second, Appellants argued that the implementation of DAPA circumvented the notice-and-comment requirement of the Administrative Procedure Act (“APA”).  Third, that DAPA otherwise violates the APA’s prohibition on “arbitrary and capricious” executive Actions.  As to establishing standing, Appellees re-assert (and at least the Federal District Court accepted this position) the novel and stunning theory of “abdication standing” where they argue that the federal government and its delegated agencies, by issuing the DAPA directive, have simply failed to cohesively administer immigration law and, therefore, have given up a right to exclusive policy-making authority in that field.  It should be noted that the Federal District Court for the Southern District of Texas failed to issue any definitive ruling concerning either the Take Care clause or the APA’s prohibition on “arbitrary and capricious” Actions, ruling only that DAPA violated the notice-and-comment requirement of the APA.

Appellants: In defense of DAPA, Appellants re-assert standing and “political question doctrine” issues, maintaining that Appellees lack standing to challenge an Action rightfully and exclusively belonging to the executive branch.  Additionally, Appellants submit that the APA’s notice-and-comment requirements do not attach to executive directives in an immigration context where a. Congress has expressly given the executive exclusive authority over the field AND b. that the executive Action in this case was merely a “Guidance” which does not affirmatively bind any agency of the executive to act in compliance therewith and does not strip any state of its sovereign powers.  Finally, Appellants argue that Appellee’s cannot make out a prima facie case for justifying an injunction – for lack of irreparable harm.


Interestingly, the policy arguments supporting either side tend to reframe the same facts in different lights.  For instance, briefs submitted by parties on either side readily acknowledge that “immigration” (particularly the undocumented alien issue) is a problem of national concern – there are, at present, more than 11 million undocumented aliens present in the United States, many of whom are children and parents of such children.

Where Appellants bring arguments showing that the Obama administration is acting in a forthright and responsible way by doing something about the problem – in the form of DACA and DAPA, the Appellee’s characterize the directives as only exacerbating “illegal immigration”.

Where Appellants argue that implementing a consistent and predictable program to shift already limited resources to focusing on legitimate national security issues related to immigration, is wise (as opposed to focusing on the removal of non-criminal, tax-paying, integrated members U.S. society), Appellee’s focus on the perceived financial burden that DAPA may have on state and local governments.

Where Appellees assert that DAPA encourages unlawful migration to the United States, Appellants underline that the directive does not confer legal status on undocumented aliens, does not preclude the possibility of removal, and does not directly require the states to subsidize the federal Action.

This essentially yin-and-yang policy argumentation pervades the submitted briefs of the two sides and suggests, at least to this writer, that the dispute is fundamentally a continuation of politics by other means.


And here we are.  Obscuring visions of a way forward on immigration, the veritable fog of political war that has stubbornly set over this legal dispute means it is very difficult to speculate about DAPA’s future.  We all await the 5th Circuit’s Opinion on the merits which, despite being expedited, has no known release date.  Stay tuned.  To read what I consider to be a rather good, condensed summary of these same events and positions: See http://www.immigrationpolicy.org/sites/default/files/docs/understanding_initial_legal_challenges_to_immigration_accountability_executive_action-long_on_politics_short_on_law_final.pdf .

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