Yesterday, a sharply divided three-judge panel of the Fifth Circuit ruled against the legality of the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”), as well as the expansion of the Deferred Action for Childhood Arrivals program (“DACA”).
The majority opinion was written by Judge Jerry Smith, who was nominated to the court in 1987 by President Ronald Reagan. Millions of people across the country will be harmed by this ruling, which came out the way it did because of whom Americans decided to elect for president 31 years ago. Joining the majority was a George W. Bush nominee, Judge Jennifer Walker Elrod. It is a powerful reminder that one of the most important issues in any presidential election is the type of judges the person elected to the office would place on the bench to decide on our most basic legal rights .
Judge (and Jimmy Carter nominee) Carolyn Dineen King authored a dissent that even the majority praised. As she pointed out, there are about 11.3 million undocumented immigrants in the United States who the law says should be removed from the country, but Congress provides resources to remove only a tiny fraction of them. Any presidential administration would have to have broad prosecutorial discretion in deciding how to allocate those resources. But on top of that, Congress specifically gave the president broad authority to establish policies and set priorities in how to allocate those scarce resources. That is exactly what the Obama Administration has done in the DAPA program. No wonder that so many legal scholars have concluded that the program is legal.
But the majority disagreed. They upheld the district court’s conclusion that DAPA required a period of public notice and comment before going into effect, under the Administrative Procedure Act. In addition to the procedural issue, they chose to address a substantive legal question not answered by the lower court, concluding that DAPA is foreclosed by federal statutes governing immigration. So even a formal comment period would not save the policy, in their eyes. (They did not rule on any constitutional issues.)
The majority did not argue that the Department of Homeland Security lacks the authority to defer deportation for those covered by DAPA … as long as those deferred don’t have the right to work legally, have Social Security benefits, obtain driver’s licenses, etc. The court majority concluded that the granting of such benefits to millions of undocumented immigrants is inconsistent with congressional intent. Judge King disagreed, writing that Congress has given enormous discretion to the president to set enforcement priorities for deferred deportation, and that the positive consequences of deferred deportation were written into the law long before DAPA came about.
The dissent stated that “this case essentially boils down to a policy dispute,” one that, under existing law, is appropriately resolved via the political process. Indeed, it is legal and not political arguments that should carry the day in our nation’s courts. Yet this court case began when Republican governors chose to file their lawsuit in Brownsville, Texas, so they could have it decided at the district level by Judge Andrew Hanen, whose intense political disagreement with the federal government’s immigration enforcement policies has infected his judicial opinions.
It is also hard to forget the greater context in which the political debate is occurring. Republican officials across the country have loudly and forcefully condemned DAPA. This is the same party whose base has become sharply anti-Latino over the past few years. It is also a party with a leading presidential candidate calling for rounding up 11 million immigrants and kicking them out of the country. The other Republican presidential candidates have hardly repudiated that as unacceptable; to the contrary, they have all promised to endorse Donald Trump’s candidacy should he be the party’s nominee.
As PFAW Board member Dolores Huerta said this morning:
Because of Republican-appointed judges on the court, families who have lived in and contributed to our country for years could be torn apart. Yesterday’s 2-1 decision from the 5th Circuit Court was fundamentally incorrect. It is a reminder of how much courts matter, as well as how important presidential elections are, since it’s the president who nominates justices.
While every single one of the Republican presidential candidates has spoken out against President Obama’s executive actions, Democratic candidates have discussed ways to expand his actions to protect people from deportation. Latino communities across the country are listening, and in the next election we’ll hold Republican candidates responsible for their efforts to break up families.