Symposium: The government’s violation of the APA’s notice-and-comment requirements provides a simple solution to a thorny case

Richard Samp is Chief Counsel of the Washington Legal Foundation.

Ever since the Solicitor General filed a petition for certiorari in December on behalf of the government in United States v. Texas, some commentators have been billing the case as an epic clash between the executive and judicial branches. The Court’s decision to add consideration of a question not presented by the petition itself – whether the government’s November 2014 guidance document violates the Constitution’s Take Care Clause – upped the ante and suggested that a major constitutional decision addressing separation-of-powers issues might be in the offing. But not so fast.

The central issue in the case is a much more mundane administrative law issue: did the government violate the Administrative Procedure Act (APA) by adopting the guidance without adhering to the APA’s notice-and-comment procedures? Because the violation of those procedures is so blatant, Justices who prefer avoiding a direct confrontation with the president may well decide to invalidate the guidance on that basis, without addressing the broader constitutional and immigration-policy issues to which the parties are devoting so much attention.

The APA’s notice-and-comment requirements are set forth at 5 U.S.C. § 553(b). The Court has repeatedly warned that rules subject to the APA “cannot be afforded the force and effect of law” unless they are promulgated pursuant to the “minimum essential rights and procedures set out in the APA.” The guidance issued by the U.S. Department of Homeland Security (DHS) – a November 20, 2014, directive setting forth the provisions of DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) – was released without advance notice and did not provide an opportunity for public comment. Thus, unless one of the statutory exceptions applies, the APA bars DHS from implementing DAPA until after it provides a commenting opportunity.

General statements of policy

In seeking to overturn the lower courts’ determination that DHS failed to comply with APA procedural requirements, the government relies principally on the exception for “general statements of policy.” It contends that the guidance does no more than advise the public prospectively of the manner in which DHS proposes to exercise its discretionary power to prioritize immigration enforcement and that it will not seek removal of certain unauthorized aliens.

But if that is all the government seeks to accomplish, it is hard to understand why it is so upset by the district court’s preliminary injunction. The lawsuit does not challenge DHS’s exercise of discretion not to seek removal of millions of unauthorized aliens, including aliens already subject to final orders of removal. Nor does the injunction prevent DHS from continuing to exercise that enforcement discretion. Rather, the injunction focuses on a separate portion of the guidance: DHS’s effort to grant “lawful presence” status to unauthorized aliens and thereby render them eligible for a wide range of public benefits. By purporting to extend that status to millions of individuals who otherwise would not have it, the guidance grants substantive rights and thus unquestionably is subject to APA procedural requirements.

The government insists that conferring “lawful presence” is not a grant of any legal status. Rather, it argues, “lawful presence” is simply the label for the consequence of memorializing a decision to forbear from enforcement action for a designated time; that is, whenever DHS has decided to defer action with respect to an unauthorized alien, that individual is automatically legally present in the United States for the duration of the deferral. That argument is without merit. An alien who is not authorized under immigration law to be present in the United States does not become authorized simply because DHS has decided to defer efforts to remove him. If DHS means to adopt a rule that will authorize continued presence for those who – prior to adoption of the rule – were deemed unauthorized, then it is adopting a substantive rule and must comply with the APA’s procedural requirements.

Lawful presence confers eligibility for substantial benefits

DHS does not deny that once an alien is deemed lawfully present in the United States, he becomes eligible for a broad range of federal and state benefits. For example, a statute adopted by Congress in 1996, 8 U.S.C. § 1611, bars unauthorized aliens from receiving any federal public benefits (with very limited exceptions, such as emergency medical assistance). But the statute also provides that an alien who is “lawfully present” in the country is eligible to receive Social Security benefits as well as benefits under the supplemental security income program. A lawfully present alien is also generally granted authorization to work and becomes eligible for state benefits such as unemployment compensation. Thus, by announcing that aliens granted deferred-action status under DAPA are also lawfully present in the United States, DHS is trying to effect a substantive change in the law that would confer substantial benefits.

DAPA is not a tentative statement of policy

If DAPA were merely a tentative statement of how DHS intends to address future enforcement issues, it would qualify as a “general statement of policy” exempt from notice-and-comment requirements. But as the district court found, there is very little “tentative” about DAPA. It establishes five criteria that immigration officials must use in determining whether to grant deferred-action status to unauthorized aliens for a three-year period – most prominently, whether they have a child who is a U.S. citizen or lawful permanent resident. While DAPA states that officials may also consider “other factors” that might cause them, in their discretion, to conclude that a grant of deferred action is “inappropriate,” it gives no clue regarding what those “other factors” might be. Indeed, the district court found that DHS established its DAPA program in a manner designed to prevent immigration officials from garnering information concerning “other factors.” For example, immigration officials are likely to garner such information only by conducting face-to-face interviews. But DHS has directed that DAPA applications are all to be processed at a central facility in the Washington area, thereby precluding face-to-face interviews.

After reviewing extensive evidence submitted by both sides, the district court found that the guidance did not, in fact, grant immigration personnel unfettered discretion to deny DAPA deferred-action status to unauthorized aliens who meet the five criteria set forth in the guidance. The court bolstered that finding with some highly revealing evidence: under DHS’s 2012 DACA (Deferred Action for Childhood Arrivals) program – which DHS used as its model for DAPA – DHS approved deferred action for every single one of the more than 600,000 applicants who met the five listed eligibility criteria.

The government does not argue that the district court’s factual finding was clearly erroneous. Indeed, it now is attempting to make a virtue of the tight control that the DAPA guidance imposes on immigration personnel. It told the Supreme Court that it is entirely appropriate for agency heads to “instruct their subordinates,” and that a contrary rule “would hamstring the Executive. The head of an agency cannot realistically implement any policy without instructing subordinates.” That assertion is undoubtedly correct. But the APA dictates that when an agency instructs subordinates regarding how they are to apply immigration law to specified groups of unauthorized aliens (as opposed to issuing general policy statements designed to inform the public regarding how it is likely to exercise its enforcement discretion in future cases), it is creating substantive law that is subject to notice-and-comment requirements.

Standing and reviewability

Of course, the district court had authority to issue the preliminary injunction only if the plaintiffs adequately demonstrated standing and only if the APA grants them a cause of action. The United States devoted a significant portion of its certiorari petition to arguing that the twenty-six states that challenged DAPA lacked standing because they had not adequately established any injury directly traceable to DAPA. The states pointed to numerous alleged injuries, including the costs of providing driver’s licenses to the hundreds of thousands of unauthorized aliens who will become eligible for licenses after gaining “lawfully present” status. I will leave to others a more extended analysis of standing. Suffice it to say that the Court held in Massachusetts v. EPA that states are “entitled to special solicitude in [the Court’s] standing analysis.” That decision has been criticized by some for extending federal court jurisdiction beyond the limits imposed by Article III of the Constitution. But so long as the Court continues to adhere to Massachusetts v. EPA, it is unlikely to find that the injuries alleged by the twenty-six states here are insufficient to establish their standing.

The government also asserts that the states lack a cognizable APA claim. It argues that the immigration-law decisions the states challenge are “committed to agency discretion by law” and that courts lack meaningful standards for determining when an agency’s exercise of enforcement discretion becomes so widespread that it constitutes a failure to carry out its statutory mandate. But that argument has no relevance to the states’ procedural APA claim. Congress has established meaningful standards for determining when an agency must follow notice-and-comment procedures before adopting a rule, and the APA creates an express cause of action for those injured by a violation of those standards.

No irreparable harm

The government contends that the preliminary injunction is also unwarranted because it is inflicting irreparable harm. But the harm it cites is largely illusory. The injunction does not prevent DHS from focusing its enforcement resources on those unauthorized aliens whose removal it considers to be of highest priority. It does not interfere with DHS’s decision to exercise its discretion to cease all efforts to remove unauthorized aliens with a child who is a U.S. citizen. Even in the absence of a formal DAPA program, DHS can easily send word to all immigration officials not to devote resources to enforcement efforts against an alien who – after initial contact with an immigration official – demonstrates that one of his children is a citizen. Finally, although the government argues that “humanitarian” concerns justify an immediate grant of “lawfully present” status to the four million DAPA-eligible undocumented aliens, Congress disagrees. It has mandated that before DHS may grant that new status, the agency must (at a minimum) provide notice and an opportunity for public comment on the proposed policy.

Because DHS failed to do so, the Court could well decide to issue a narrow decision that affirms the preliminary injunction based on the government’s procedural APA violations – without reaching any of the broader issues that have attracted so much attention to the case.