Last week saw federal judges twice stymie the executive branch by enjoining the Department of Homeland Security from doing what it wants to do. The first injunction, in Texas v. USA, stopped the government from doing something nice for the undocumented – beginning the implementation of the first of the President’s executive actions announced last November. The action was to expand the Deferred Action for Childhood Arrivals (DACA) program to both earlier and later arriving children.
The second injunction, in , R.I.L-R v. Johnson stopped the government from doing something mean to the undocumented – stopping the government from detaining without seriously considering releasing recently-arrived undocumented aliens caught inside the United States near land borders. While a split this week on good happening to the undocumented, it was a week of failure for the government.
In neither case was the government enjoined from doing what it wanted because what it wanted to do was unconstitutional. Rather, the government was enjoined for violating the Administrative Procedures Act in the case of enjoining the implementation of the expanded DACA and for violating its statutory duty to administer a detention statute in a manner that would not implicate constitutional concerns in the case of stopping the virtual mandatory detention of newly arrived aliens caught inside the U.S. near the border.
Shouldn’t those who insist that the President has broad executive powers in law enforcement be disappointed at his (administration’s) twin losses this week while those who favor a more-restrained executive be celebrating? Probably, but the divide in immigration law is not ideological, it is about the undocumented themselves.
In the case of the DACA expansion injunction, the district court judge in the case concluded that the government was issuing new administrative regulations to enforce statutes of the Immigration and Nationality Act and that to do so, the notice and comment process for regulation promulgation had to have occurred and had not. The government argued that no new rules were promulgated; rather the discretionary application of the law was being changed, which is not a new rule which needs to be promulgated through notice and comment. Actually, the judge’s position is not as cuckoo as pro-alien observers would have you think. It puts pro-immigration forces in the position of having to defend a strong executive – a strong executive prone to extend its powers to new limits as time goes on.
Hence, to the second injunction which is about a strong executive extending the limits of its power. Here the strong executive, responsible for the detention decision relating to aliens caught at or near the border, was not releasing women and children. It was keeping these aliens detained not based on the twin regulatory bases for releasing aliens from custody – whether they are a flight risk or a danger. 8 C.F.R. § 236.1(c)(8). Instead, people where not released so as to serve to deter others from coming to the United States. The court said that was an impermissible use of the executive’s authority in making custody determinations.
Both cases reduce to one single issue – discretion. In the DACA extension case, the question was whether the President’s plans were allowable discretion or a new rule that needed to be properly created. In the detention case, it was whether the government acts in its discretion when it uses deterrence as a custody determination factor. It is hard to make an argument to your desired outcome – to simplify, pro- or anti- alien – if trying to advance an argument based on the degree of fetteredness executive discretion should be.
Of course there is a way to reconcile ideology and the outcomes in the cases. That is, consideration of the merits. If you believe that DACA and the soon to come DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) are within the bounds of executive discretion then you are disappointed in the injunction. Similarly, if you believe that considering the deterrence value of detention an improper consideration in a civil detention determination, you are happy about that injunction.
Can someone be ideologically pure about the power of the executive and conclude that one injunction was correctly decided and the other was not? Can a person believe at the same time that the executive branch does not have the authority to tolerate some classes of the undocumented in our presence but has the authority to detain without consideration of flight risk and danger asylum seekers who entered the United States without inspection? Or, conversely, can a person believe that the executive has the authority to tolerate the presence of certain classes of the undocumented, but no authority to make the release of undocumented aliens found inside the United States near the border subject to consideration of the effect on the control of the border of the knowledge that aliens entering without inspection and seeking asylum will with high probability be released soon after their initial apprehension?
I suppose some will find taking contrary positions from the alien or the government in both of the two matters is intellectually consistent with their views about executive power after carefully considering the statutes, regulations, precedent decisions, and government policies. Most people, I suspect, take a side based on their feelings about undocumented aliens. Consistency in support of or opposition to the undocumented is the real issue, not consistency in theoretical considerations of the role of discretion in government decision making and its impacts on the prerogatives of the executive branch. Posted February 22, 2015.