Immigration Litigation Timing and Presidential Politics

by Michael Dorf

On Tuesday, a 2-1 decision of a panel of the U.S. Court of Appeals Fifth Circuit affirmed the district court's preliminary injunction against President Obama's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. According to various news accounts (including this one in the NY Times), the Justice Dep't does not plan to seek a stay of that ruling from the Supreme Court. Consequently, if the case even gets to the Supreme Court during President Obama's remaining time in office, it won't be until next Term, and probably wouldn't be decided until nearly the end of next Term, in June 2016. As I told a reporter who asked me about the timing before the Fifth Circuit ruled, that puts any SCOTUS ruling in the middle of the presidential election campaign. (Although the conventions will take place in July, by late June 2016, the presumptive nominees will likely be known.)

Consequently, as the Times story linked above notes, DAPA will not likely be successfully implemented on President Obama's watch. Even if the Administration gets the all-clear from the SCOTUS in June 2016, undocumented immigrants eligible for DAPA would be reluctant to come forward knowing that a Republican victory in the presidential election would mean that any benefits obtained as a result would be taken away in January 2017. Meanwhile, they would have rendered themselves vulnerable to immigration enforcement. Indeed, a version of this dynamic would have been in play even if Judge Hanen had not enjoined DAPA; someone who signed up for DAPA in February of this year would still have had to worry that her DAPA advantages would go away in less than two years.

Meanwhile, one can also speculate on how the timing of the case will likely affect the presidential campaign itself. I think that its impact will be marginal, but perhaps interesting.

On the Democratic side, Hillary Clinton has already said that she would keep DAPA in place if elected and "go even further." A June 2016 SCOTUS ruling finding DAPA invalid could complicate her pitch, although much would depend on the details of the ruling. If the Court were simply to hold (as the district court and the appeals court did) that DAPA circumvented the Administrative Procedure Act (APA), President Obama could initiate a rulemaking to put it into place. Indeed, to my mind, the fact that the Administration hasn't already done so as a backup plan is at least a bit fishy. A conspiracy theorist might think that the Administration wants to preserve the APA objection so that if the government loses in the SCOTUS in 2016, it can be on that technical ground, allowing the Democratic nominee to continue to vow executive action in a credible way. By contrast, if the Administration were to lose in the Supreme Court in June 2016 on the ground that DAPA is invalid on statutory or constitutional grounds, the Democratic nominee could not credibly claim that she would be able to take effective executive action.

To be clear, I have no evidence that these sorts of political calculations are driving the Administration's go-slow litigation strategy. Moreover, there is a less political explanation for why the Administration has not simply initiated a notice-and-comment rulemaking as a Plan B: Doing so would produce a rule that would be challengeable as agency action under the APA. To this point, the government has been arguing that DAPA is agency non-action, and thus unreviewable pursuant to the doctrine of Heckler v. Chaney.  The district court rejected this argument, as did the Fifth Circuit panel, but Judge Higginson, in dissent, accepted it, and the Administration may think it will fare better in the Supreme Court. Promulgating a rule that encapsulates DAPA would jeopardize the Heckler argument.

Meanwhile, the litigation timing could affect the Republican primaries and the position of the Republican nominee in the general. A candidate who wants to win both the Republican nomination and the general needs to take a hard line against undocumented immigrants to appeal to the the primary electorate but a softer, pro-reform line in the general. The danger (on this subject as on others, for Democrats as well as Republicans) is that statements made to appeal to the party base can be used against the candidate in the general.

The Obama policy is, in theory, a gift to Republicans because it offers them a way to take a seemingly tough stand on immigration in the primaries without the necessity of backtracking in the general. Someone like Jeb Bush or Marco Rubio can lambaste Obama for executive overreach on immigration and thus score points with the primary voters. He can then use the same tactic in the general against (let's assume) Hillary Clinton, but at this point couple criticism of presidential unilateralism with support for comprehensive immigration reform via statute. A June 2016 ruling by the SCOTUS would either buttress this strategy--if the Court invalidates DAPA--or undermine it--if the Court upholds DAPA. In the latter case, the Republican nominee would find it harder to restrict his criticism of Obama and Clinton to procedural irregularities, and that would highlight substantive disagreements on immigration.

All of that's in theory. In fact, American politics is probably too blunt for the foregoing to work for a Republican moderate on immigration, even if the SCOTUS invalidates DAPA. Even assuming that Republicans do not hold nearly as many debates as they did in 2012, the sheer size of the field ensures that one or more candidates who are doing poorly in the polls will try to gain traction by staking out a position that is very far to the right of the procedural straddle I've described above. Such a candidate--let's call him Ted Cruz--would highlight his disagreement with not only the procedure used by Democrats to arrive at DAPA but with the underlying policy itself. Cruz could essentially force Bush or Rubio to "go Romney" and promote something extreme like "self deportation." That would be much harder to walk back in the general, as Romney discovered in 2012.