by Michael Dorf
Yesterday, U.S. District Court Judge Andrew Hanen issued a 123-page opinion preliminarily enjoining the Obama Administration's program of deferred action for undocumented immigrants. The opinion is ideological in ways that I'll elaborate, and it may well be wrong, but if it's wrong, it's wrong in applying a principle that liberals and progressives support, not in those principles themselves.
More than half of the opinion addresses questions of standing. The plaintiffs are states that say that they will suffer various adverse consequences from deferred action. Judge Hanen credits their claims, focusing on the added state costs of issuing driver's licenses to undocumented immigrants granted deferred action.
He also includes a very long but ultimately unnecessary discussion of the Supreme Court's 2007 decision in Massachusetts v. EPA. In that case, the Court allowed Massachusetts to sue the federal government to compel the latter either to regulate greenhouse gases under the Clean Air Act or to provide adequate reasons for failing to do so. The case looks like it ought to be gold for the plaintiff states in the immigration case: States were given standing to challenge agency inaction under an approach that appeared to set a lower bar for states to sue than for individuals. Yet Judge Hanen ties himself in a pretzel to avoid relying on Massachusetts, going so far as to say that the challenge relying on it is not ripe. He seemingly can't bring himself to rely on a liberal standing precedent--one acknowledging the reality of manmade global warming, no less--and rather than simply say that the driver's license costs are enough to ground standing, he goes out of his way to address and reject the Massachusetts-based theory.
What's more, in the course of doing so, Judge Hanen manages to score another ideological point. The deferred action program will hurt the states in another way because of . . . wait for it . . . wait for it . . . Obamacare! How, you say? Well, he expects the Administration to say that even though undocumented immigrants eligible for deferred action will be able to work while in the U.S., they won't be eligible for health insurance under the Affordable Care Act. But that means that, as between an undocumented immigrant and a legal immigrant or citizen, employers will have an incentive to hire the undocumented immigrants, who will not impose additional health insurance costs on employers. So deferred action, in combination with Obamacare, will hurt legal immigrants and citizens! But that's all just an aside en route to rejecting the standing theory of Massacusettes v. EPA.
There are other indicia of ideological dudgeon. The opinion repeatedly uses the terms "illegal alien" and "illegal immigrant," even though Judge Hanen acknowledges in a footnote that many people find these terms offensive. (He says it's okay to use these terms because the Supreme Court did it too.) Moreover, the opinion reads as though undocumented immigrants are traversing our unsecured borders in ever-increasing numbers, even though the number of undocumented immigrants present in the U.S. has declined since its peak in 2007.
The opinion also repeatedly disclaims any interest in the politics or policy of deferred action, even as it also cites obviously political rhetoric by President Obama as though it reflected the Administration's official legal position. These disclaimers of any political agenda have a "doth protest too much" air about them--although admittedly, one sees this sort of thing across the ideological spectrum when a judge or Justice makes a decision that he fears will be unpopular. For example, Justice Kennedy, concurring in Texas v. Johnson, made clear that he disagreed with Johnson's message in burning a U.S. flag. And Justice Stevens (whom Judge Hanen's opinion repeatedly calls "Justice Stephens"), in his majority opinion in Kelo v. New London, ended by noting that even though states could constitutionally use eminent domain to transfer property to private developers, they were not obligated to do so.
On the merits, Judge Hanen's opinion strikes me as most vulnerable in its conclusion that the deferred action program is subject to challenge, notwithstanding the 1985 SCOTUS ruling in Heckler v. Chaney that agency inaction in the exercise of prosecutorial discretion is not reviewable under the Administrative Procedure Act (APA). Judge Hanen says that the deferred action program falls outside the scope of that precedent because it is not mere inaction but also confers various benefits on the undocumented immigrants who are granted deferred action. That strikes me as implausible, because the heart of the program is the non-deportation, whereas the other benefits seem to be merely incidental.
Judge Hanen also enjoins the program on the ground that it failed to comply with the APA notice-and-comment procedural requirements, rejecting the government's view that the program is exempt as mere "guidance." Judge Hanen's argument here strikes me as somewhat stronger than his argument for distinguishing Heckler v. Chaney, although failure to satisfy notice-and-comment would be at most a temporary setback for the Administration, because it could re-promulgate the policy via the APA-approved procedures. In principle, the whole opinion is only a temporary setback, insofar as it merely issues a preliminary injunction, but here, as is often true in such matters, the court's opinion leaves little doubt that a final injunction would follow.
Unless and until Judge Hanen's ruling is reversed by the Fifth Circuit or the SCOTUS, it will cause legal uncertainty and potentially serious hardship for millions of undocumented immigrants. There may nonetheless be a silver lining: the principles of reviewability of agency inaction articulated by Judge Hanen's opinion are, on the whole, commendable. Other things being equal, progressives have more to fear from unilateral presidential decisions not to enforce federal law than do conservatives because, other things being equal, progressives want the government to act, while conservatives don't. Accordingly, as I explained in an earlier post, progressives ought to be anxious about a president invoking prosecutorial discretion as a pretext for not enforcing a law because he disagrees with its underlying policy.
Will that in fact be a silver lining? That depends onwhether legal doctrine announced by conservatives for conservative results (or by liberals for liberal results) has a substantial binding effect on them in later cases with a different ideological valence. I'm enough of a legal realist to expect that liberal and conservative judges would apply the principles governing when the president can exercise prosecutorial discretion differently depending on whether the president is choosing not to enforce some provision of immigration law or some provision of environmental law.
But I don't think that legal doctrine has no impact at all. At the very least, if Judge Hanen's ruling is ultimately upheld by the SCOTUS, then that decision will at least provide some rhetorical ammunition for a future liberal Supreme Court to invalidate a future conservative president's decision not to enforce the ACA, the capital gains tax, or the Clean Air Act. And even if the courts would reach those ideologically driven results regardless of how the prior precedent looked, the ability to cite favorable precedent with the opposite ideological valence has some value in politics. That's why Democratic presidents like to invoke policy precedents from their Republican predecessors, and vice-versa.
I realize that the silver lining I've identified here is pretty thin--perhaps a silver-plated lining at most. You take what you can get.