The Obama Administration’s Remaining Options for Executive Action on Immigration

Posted in: Constitutional Law

Last week, Federal District Judge Andrew Hanen enjoined the Obama Administration from implementing its new program of deferred action for several million undocumented immigrants. Although the written opinion was sweeping in its rationale and rhetoric, as a technical legal matter it was based on one, seemingly remediable flaw in the program. Judge Hanen concluded that the deferred action policy was adopted in violation of a provision of the Administrative Procedure Act (APA) requiring that at least 30 days before putting into effect a new administrative rule, a federal agency must generally give the public notice of, and an opportunity to comment on, the proposed new rule. (The relevant agency here is the Department of Homeland Security.)

Posts on my blog by me and by Professor Anil Kalhan explain how Judge Hanen’s argument is both far-reaching and quite possibly wrong. In this column, I turn to next steps, discussing how the Obama Administration might react. None of its options looks very good—at least if the goal is to provide immediate protection for the particular immigrants affected—but, as I explain below, Judge Hanen may have inadvertently put President Obama and the Democratic Party in a very powerful position politically.

The Policy and the Ruling

Like President George W. Bush before him, President Obama unsuccessfully sought legislation from Congress that would overhaul our nation’s immigration laws to provide a less precarious legal status for some of the millions of undocumented immigrants living in this country who, as a practical matter, will not be deported. When Congress failed to pass the so-called DREAM Act, President Obama issued an executive order authorizing temporary “deferred action for childhood arrivals” (or DACA)—that is, non-deportation of otherwise law-abiding undocumented immigrants who came here as children and satisfied various other criteria. Under that policy, which was announced in 2012, the “Dreamers” are eligible for deferred action for two years, subject to renewal.

After Congress once again failed to enact comprehensive immigration reform, last fall the Administration issued another order, extending the DACA term from two to three years, extending the class of undocumented immigrants eligible for deferred action to include parents of citizens and permanent residents, and taking other measures.

Texas and 25 other states sued the Administration, arguing that the new executive order was inconsistent with the laws on the books, and that the President lacks the power to change the law unilaterally. The Administration defended the order as an exercise of prosecutorial discretion—the traditional power of the executive to prioritize more serious law violations over less serious ones.

Judge Hanen made clear in his opinion that he shared the perspective of the plaintiff states, although he did not formally address their contention that President Obama had violated his constitutional duty to “take Care that the Laws be faithfully executed.” Instead, he first devoted roughly half of his opinion to the question of whether the plaintiff states had standing; he said yes, because they would bear the administrative costs of issuing driver’s licenses for some of the additional immigrants granted deferred action. Judge Hanen then granted a preliminary injunction against the program because it had been adopted without first complying with the notice-and-comment requirement of the APA. The Administration had argued that the program was exempt because it was merely a general policy statement, but Judge Hanen thought otherwise.

Complying with Judge Hanen’s order, the Administration placed the new program on hold, at least for now. Consequently, undocumented immigrants who had hoped to apply for the new deferred action program have been left scrambling and wondering about their status.

On Monday, the Justice Department sought an emergency stay of Judge Hanen’s ruling from Judge Hanen himself. Yesterday, he told the state plaintiffs that they have until Monday of next week to respond. The Justice Department lawyers have little reason for optimism. In deciding to enjoin the deferred action program, Judge Hanen has already given a very strong indication that he believes the program should not go into effect pending the resolution of any appeal.


For that reason, even as the Administration sought a stay from Judge Hanen, on Monday it also filed an appeal to the U.S. Court of Appeals for the Fifth Circuit. Failure in the district court and the appeals court could lead to a petition to the U.S. Supreme Court.

However, the appeal route poses two sorts of risks. First, appeals take time. It is possible that the Fifth Circuit or the Supreme Court could stay the preliminary injunction pending the disposition of the appeal, but those courts might leave the injunction in place while they consider the case’s merits. And the more time that passes, the less likely it is that the Administration will be able to provide undocumented immigrants with any concrete assurances: A promise of deferred action for three years is not worth very much if it comes late in the president’s second term, given that the entire program of deferred action could be abandoned by President Obama’s successor with the stroke of a pen.

Second, the Administration could lose its appeal. As matters now stand, the Administration has suffered a setback in a single court on a somewhat technical matter of administrative law. An adverse decision from the Supreme Court or even just from the Fifth Circuit could generate a much broader, and unfavorable precedent for President Obama and for future presidents.

Notice-and-Comment Rulemaking

Accordingly, while the case continues to play out in the courts, the government might consider simultaneously initiating a formal notice-and-comment rulemaking. That way, if Judge Hanen’s ruling is ultimately affirmed or if there is a long delay while the appeal grinds on, the government would have a backup plan.

But the notice-and-comment process carries at least three substantial risks of its own. First, it can be slow. Although the APA mandates only a 30-day wait between the announcement of a rule and its implementation, in practice notice-and-comment rulemaking can take much longer. Agencies are not merely required to receive comments from the public. Administrative law requires the agency to respond to comments, providing a reasoned explanation for rejecting objections. Thus, the notice-and-comment process provides opponents of a regulation significant opportunities to delay implementation beyond the statutory minimum of 30 days.

Second, initiating a notice-and-comment rulemaking would potentially undermine one of the government’s most powerful arguments on appeal. Under the Supreme Court’s 1985 ruling in Heckler v. Chaney, agency exercises of prosecutorial discretion not to act are presumptively not subject to judicial review. Judge Hanen found the presumption inapplicable in last week’s ruling, but that finding could be reversed on appeal. However, there is clear authority for judicial review of notice-and-comment rulemakings, and so initiating one could provide Texas and the other plaintiff states a firmer basis for judicial review than they currently have.

Third, even if the agency were able to re-adopt its deferred action program via notice-and-comment rulemaking in relatively short order, there is no guarantee that the outcome would be upheld. Indeed, although Judge Hanen’s decision was formally based only on the failure to use the notice-and-comment process, his sweeping rationale and rhetoric made clear that he would very likely find the policy invalid as a substantive matter because it goes beyond the power Congress delegated to the president.

Deferred Action Without Formal Guidance

The Administration has at its disposal another, bolder option. Although Judge Hanen enjoined the official program of deferred action that the Administration announced last fall, his opinion repeatedly states that the Administration remains free to exercise its prosecutorial discretion to defer deportation on a case-by-case basis. Judge Hanen was most concerned by the level of formalization of the policy and by his impression that collateral benefits would follow under the program.

As Professor Kalhan explained in detail on my blog, Judge Hanen was likely mistaken about the collateral benefits, which are the product of other statutes and regulations, not of the deferred action itself. In any event, it would appear that the agency could satisfy the requirements of Judge Hanen’s opinion (if not Judge Hanen himself) by announcing that it is formally withdrawing its previously announced program but that it will continue to exercise its discretion to defer action.

This may seem like the worst of all possibilities: the policy remains in effect but no one is responsible for it. Yet that is exactly what Judge Hanen and perhaps administrative law more broadly appear to invite, in making the exercise of unguided discretion unreviewable but formalized policies reviewable.

Go to Congress and Then to the American People

Finally, President Obama could capitulate to Judge Hanen, end the program of deferred action (both formally and informally), and ask Congress for legislation that would comprehensively reform the nation’s immigration laws in a way that most Democrats and even many Republicans profess to want. Given polarization and the rabidly anti-immigration sentiment in much of the Tea Party faction of the Republican Party, such a request, like prior requests, would surely fall on deaf ears. But the result would provide political clarity.

At least since then-Governor George W. Bush ran for the presidency as a self-styled “compassionate conservative” in 2000, some Republican leaders have sought to nudge their party towards the political center on immigration. The efforts have not simply been cynical attempts to appeal to Latino voters—as many people in the “Wall Street” wing of the Republican Party genuinely support comprehensive immigration reform.

By invoking Tea Party anti-immigration rhetoric against President Obama’s program of deferred action, however, Judge Hanen perhaps unwittingly strengthened the hand of the Democratic Party in the 2016 election. If, as expected, the Republican Congress continues in the same vein, it will do itself considerable political damage—and may even pave the way for a Democratic Congress willing to undertake comprehensive immigration reform.

One response to “The Obama Administration’s Remaining Options for Executive Action on Immigration”

  1. Roy Bryant says:

    It is Democrats and RINOs that will not accept “comprehensive” immigration reform. Those left-wing extremists want to cherry-pick “reforms” that tends to destroy any society while refusing to do something beneficial. Democrats and RINOs would walk into a flooded room and allow a little mopping-up here and there, while vehemently insisting that the spigot from which the water is coming must not under any circumstance be turned off. And you lie when you suggest that there is “anti-immigration” sentiment in The Tea Party. Almost all of us are immigrants, and we recognize that We are just scared of the success you seem to be having in creating here the conditions from which we fled.