The Next Big Case Challenging Obama’s Executive Power

July 8, 2015 3:23 p.m.

The collision between the Obama Administration and the courts continues, even though the Supreme Court in King v. Burwell rejected the attempt to gut Obamacare. Next up: the lawsuit to invalidate the president’s executive action on immigration.

This issue has largely been out of the national spotlight since the president issued his order last November, but there is a critical court of appeals hearing this Friday—and the parallels to the Obamacare case are striking. As with Obamacare, overturning the order will inflict horrible real-world consequences on millions of people and their families (including many American citizens). Like Obamacare, the only way to rule for the plaintiffs is to ignore long-settled, fundamental legal principles. And like King v. Burwell, the lawsuit relies on legal technicalities.

If this lawsuit is successful, it could dramatically expand the federal courts’ role in clashes between states and the federal government, transforming a wide range of policy disputes formerly resolved through the political process into legal claims decided by judges. Before turning to the legal issues, it’s worth remembering why the president took this action and what it does.

The President’s Policy

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In November 2014, the administration announced it would extend “deferred action”—a long-established immigration status deferring removal proceedings for a specified period of time—to two categories of people: parents of U.S citizens or lawful permanent residents; and individuals who were under 16 when they came to the U.S. (expanding the existing deferred action program by eliminating the age cut-off for eligibility and reducing the minimum period of time in the United States).

This step, the president said, would enable the administration to focus enforcement efforts on those suspected of terrorism, espionage or gang activity; convicted of serious crimes; apprehended at the border; or who unlawfully entered the U.S. since January 2014.

The grant of deferred action is not automatic: eligible people (four million of the estimated 11 million undocumented individuals are eligible) are required to apply, submit to a background check and screening for one of the enforcement priorities, and be subject to a final individualized review to ensure that no other facts make a grant of deferred action inappropriate. Also, a grant of deferred action lasts only for three years.

Regulations issued more than 30 years ago—during the Reagan Administration—provide that deferred action status carries eligibility to obtain a work authorization if the individual can show economic necessity. Also, Congress in 2005 enacted a law providing that states may issue drivers licenses to individuals in deferred action status, but are not required to do so.

The overheated response to this initiative is even harder to understand than the hostility to Obamacare. Does anyone seriously believe that the people who qualify for this program should instead be prioritized for deportation? Or that the president is wrong to focus limited enforcement resources on terrorists, violent criminals, and the like?

Faith leaders, police chiefs and sheriffs, businesses, and 15 states and the District of Columbia filed briefs supporting the administration’s approach; they realize that freeing parents from the constant threat of being separated from their children and giving young people even the temporary comfort of eliminating fear of imminent deportation has a huge real-world impact on people’s lives (as one of the briefs filed in the case recounts in detail). But 23 states, joined by the governors of three other states, sued to block implementation of this initiative. A federal district judge granted a preliminary injunction doing just that, and the federal court of appeals for the Fifth Circuit—by a 2-1 vote—left that order in place while it reviews the ruling.

This Friday the Fifth Circuit will hear oral arguments on the appeal itself, but with the two judges who voted to leave the preliminary injunction in place also deciding the merits, the government’s chances at this stage of the litigation appear slim indeed.

Like the two Obamacare cases that went to the Supreme Court, however, the lower courts’ rulings rest on novel interpretations of important legal doctrines that are inconsistent with Supreme Court precedent. Whatever the court of appeals decides, it is not likely to have the final word.

The Legal Claim

After the president made his immigration announcement, the main attack was that he had exceeded his constitutional authority—Speaker Boehner said it was “an affront to the rule of law and to the Constitution itself.”

But—maybe because other presidents, including George W. Bush and Ronald Reagan, have invoked the same authority—the court order suspending the Obama program is not based on the Constitution.

Instead, the plaintiffs’ claim is that the Department of Homeland Security memorandum implementing the president’s policy should have been subject to notice-and-comment rulemaking. In other words, before going into effect the government should have issued a proposal, allowed 30 or 60 days for public comment, and then considered those comments before finalizing a legally-binding regulation, which then supposedly would have been subject to judicial review.

The injury that these states claim they will suffer? The costs they would incur if, in the future, they are obligated to provide driver’s licenses to the individuals excluded from deportation.

Does that “harm” provide grounds for the courts to referee a policy disagreement between a group of states and the federal government? Particularly one about enforcement priorities for deporting undocumented immigrants, an area in which the federal government’s powers are paramount?

That’s the critical issue presented in this case: when a state is able to go to court to challenge a federal policy decision. And it involves two legal principles at the heart of the concept of “judicial restraint”—the idea that federal courts have an important but limited role—which has long been the basis for conservative legal thought but is now under attack, ironically, by conservatives.

First, a little legal background. The Constitution limits the federal courts’ authority to “cases” and “controversies.” To satisfy that requirement, the party filing suit must have “standing” to sue, and the essential element of standing is “injury-in-fact”—which the Supreme Court has described as actual or imminent “concrete,” “particularized” harm. The chain of causation between the challenged action and the concrete harm cannot be “highly attenuated” or involve “speculation.”

In most cases, this requirement is easily satisfied—the plaintiff suing for injuries suffered in a car accident, the worker suing for unpaid wages, etc. And the injuries need not be economic; environmental cases, for example, can be brought by someone whose enjoyment of a federal park will be diminished by a planned construction project.

Expansive views of standing have been advanced principally by justices with an expansive view of the role of the courts, and opposed by conservatives as “judicial activism.” It is no accident that two of the leading articles advocating a limited view of standing to sue were written by Chief Justice Roberts and Justice Scalia.

Even if the party suing has standing, some kinds of government decisions are not subject to review by courts. At the top of that list is a decision by the Executive Branch not to exercise its enforcement authority. In a landmark opinion written by then-Justice Rehnquist, the Supreme Court rejected a lawsuit, brought by death-penalty opponents, challenging the Food and Drug Administration’s refusal to bring an enforcement action against the drugs used to administer the death penalty (the opponents claimed, among other things, that using the drugs for lethal injection was an unapproved use that violated federal drug laws).

The Court recognized the broad principle 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.” Unless Congress enacts standards specifically limiting the agency’s discretion, the decision not to enforce is not subject to judicial review.

Here too, advocates of judicial restraint have typically been conservatives, who argue that the Constitution’s allocation to the president of the responsibility to “take care that the laws be faithfully executed” means that the courts have no role to play as long as there isn’t a claim that the Executive Branch has violated another provision of the Constitution.

The two judges who kept in place the preliminary order putting the administration’s plan on ice turned these settled principles upside-down. And their legal ruling could allow states to bring a court challenge to virtually any federal decision. That would dramatically expand the role of the federal courts in refereeing policy disputes between the states and federal government.

As to standing, states are not the same as individual plaintiffs. They may sue for intrusions on their sovereign prerogatives, such as when Congress enacts a federal statute that purports to invalidate conflicting state laws. Or when they seek to, as the Supreme Court recently put it, “preserve [their] sovereign territory.”

But they can’t sue whenever a decision by another state or the federal government may result in increased costs. Think about it: a state could always argue that a particular federal decision raises its costs; setting federal enforcement priorities in one way requires the state to devote more resources to the areas not covered by the federal government, raising the state’s costs. If the state follows federal definitions of “income” for tax purposes, any change in the federal test would adversely affect the state’s revenues and, under this theory, give rise to standing. Every state’s disagreement with a federal policy decision could be turned into a court case by pointing to some incremental additional cost (or decline in revenue), making federal courts the referees of every federal-state dispute.

The Constitution’s Framers thought these disputes would be worked out in the political process. Making judges the “deciders” would be a dramatic change, and incredible expansion, of the courts’ role.

But the two judges concluded that the $130.89 that it costs Texas to issue a driver’s license is sufficient to confer standing to challenge the entire initiative. (The 15 states supporting the administration pointed out the financial benefits to states of granting deferred action, such as increased tax revenues, but the judges concluded that they could not be considered in determining whether Texas would suffer a concrete injury.)

The ruling that immigration enforcement decisions are subject to judicial review is just as unprecedented. Far from limiting the president’s discretion, the immigration laws expressly reinforce it at every turn. Indeed, by expressly barring an alien from obtaining judicial review of decisions to institute removal proceedings, Congress made clear—in the Supreme Court’s words—that it wanted to prevent “attempts to impose judicial constraints upon prosecutorial discretion” in the immigration area.

The two judges pointed to the fact that deferred action status produces other consequences—such as eligibility for employment in certain circumstances. But those longstanding consequences of a non-enforcement decision provide no basis for concluding that Congress limited discretion to decision whether or not to enforce. To take just one analogy, the decision not to prosecute an individual means that he or she remains free and is protected against losing the right to vote as well as retaining eligibility for a variety of jobs for which a conviction would be disqualifying. Surely, those consequences do not render criminal prosecution decisions subject to judicial review.

The judges also asserted that judicial review is available because the Administration adopted specific guidelines for making enforcement decisions. Those guidelines, however, make clear that each decision involves the exercise of particularized discretion: Even if an individual meets the threshold standard, he or she may not be granted deferred action if the specific facts make it inappropriate.

More fundamentally, just about all discretion is limited by guidelines. The Department of Justice has a multi-volume manual providing guidance to federal prosecutors on how to exercise their authority. That manual would be subject to judicial review under this rationale.

Indeed, the dramatic inconsistency between these judges’ ruling and the Supreme Court’s quite consistent rejection of broad standing and challenges to government enforcement decisions is demonstrated by a recent Supreme Court decision upholding state standing—the suit by Massachusetts challenging the Bush Administration’s refusal to regulation greenhouse gases.

Four Justices—Chief Justice Roberts writing a vigorous dissent for himself and Justices Scalia, Thomas, and Alito—rejected the standing claim. Justice Kennedy provided the crucial fifth vote to the majority and wrote a very narrow opinion, pointing out that the State was asserting a sovereign interest (the loss of its coastal lands), not just monetary injury, and that a refusal to issue rules was very different from a refusal to take enforcement action. Neither of those apply in the immigration context.

If the two judges’ approach prevails, it would be open season for state lawsuits challenging federal government actions. In the immigration context, decisions to grant deferred action to even one individual could have monetary consequences for a state, and that presumably means that judicial review would be available. And what about the federal government’s recent decision regarding marijuana prosecutions? Surely that could shift enforcement costs to states; does that give states standing to challenge the federal policy?

Even a plea agreement in a particular criminal case could be challenged on the grounds that allowing the defendant to plead guilty to a lesser charge carrying a lower maximum sentence would put the defendant out on the streets sooner, and impose costs on the state.

The legal theory wouldn’t only open the federal courts to conservative states—it also would let “liberal” states challenge conservative policies in court. Thus, a policy against deferred action imposes costs on states by increasing “off the books” employment and thereby lowering state revenues, according to the brief filed by States supporting the Administration. And it makes policing more difficult, and more expensive, according to the brief filed by police chiefs and sheriffs.

The federal courts will quickly be caught in the middle of large numbers of policy issues: regardless of the federal government’s decision, some group of states will be able to sue. That is the opposite of the judicial restraint that former Chief Justice Rehnquist and many other conservative jurists have championed.

Of course, some conservatives, perhaps worried about continued progressive control of the political branches, advocate this result. George Will, for example, attacked Chief Justice Roberts’ decision in the Obamacare case, saying that “decades of populist praise of judicial deference to the political branches has borne this sour fruit” and urging courts to expand their power.

Two judges on the Fifth Circuit appear to have heard that message—although they have an opportunity to change their minds. Within the next year we’re likely to see whether a majority of the Supreme Court is willing to endorse such a dramatic expansion of judicial power, and erosion in the authority of the federal government’s political branches.

Andrew Pincus is a Washington lawyer specializing in appellate litigation. The views expressed are his, not those of his firm or its clients.

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