In mid-February, U.S. District Judge Andrew S. Hanen issued an injunction enjoining the Obama administration from implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA).  Under DAPA, over four million illegal aliens present in the United States would be shielded from deportation and would be eligible to receive work permits, as well as a variety of state and federal benefits.

A lawsuit (Texas, et al. v. United States) brought by 26 states complained that the uncontrolled influx of illegal aliens drains scarce state resources and leads to domestic unrest.  The states further objected that DAPA was not passed by Congress and signed into law by the president, but is a creature of the Department of Homeland Security (DHS) put into effect via a memorandum promulgated by Secretary Jeh C. Johnson.  The states contended that this action by an agency of the executive department is contrary to the Constitution’s command that the president shall “take Care that the Laws be faithfully executed,” and that the new policy violates certain procedural requirements of the Administrative Procedure Act (APA).

To have standing, a plaintiff must demonstrate an actual injury traceable to the actions of the defendant.  The states satisfied this requirement easily by showing that they will suffer financial losses if the illegal aliens are granted legal presence and thus are entitled to state driver’s licenses.  Texas alone incurs a net loss of $174 per license issued, thanks to the requirements of the federal REAL ID Act of 2005.  Under DAPA, approximately 500,000 aliens would be eligible for licenses in Texas.

The court also granted standing based on abdication theory: “This Court has also found that the Government has abdicated its duty to enforce the immigration laws that are designed, at least in part, to protect the states and their citizens.”

In turning to the case’s merits, the court avoided the constitutional question and focused on the APA.  When promulgating a formal rule, an agency must publish notice in the Federal Register, which gives interested parties the opportunity to offer comments and to petition for or against the rule.  These APA requirements apply only to substantive rules and not to a general statement of policy.  Typically, a matter is substantive if it awards rights, imposes obligations, or has a binding effect on agency discretion.

The federal government argued that DAPA was not a program but an exercise of agency discretion to commit resources to other areas that the agency determines to have a higher priority; it was mere “guidance.”  An agency’s refusal to institute proceedings, the government correctly noted, has traditionally been left to agency discretion under the case law.

The court rejected the government’s position and pointed out that DHS’s own website refers to DAPA as a “program.”  Judge Hanen also observed that President Obama boasted in a press release that with DAPA his administration had “changed the law.”

As for the argument that DAPA was nothing more than an exercise of prosecutorial discretion on whether to institute removal proceedings, the court responded that,

Instead of merely refusing to enforce the INA’s removal law against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.  Absent DAPA, these individuals would not receive these benefits. . . .


Non-enforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations.

The federal government has appealed to the Fifth Circuit and has asked that the injunction be lifted so that DAPA can be implemented, calling it “an integral part” of DHS’s border-security efforts.

This argument will likely carry little weight, considering the recent history of federal officials simply ignoring the invasion occurring at our southern border.  DHS can continue to prosecute or not to prosecute illegal aliens.  All the injunction does is prohibit DHS from granting legal presence status and the benefits that accompany such a change in status.

Texas, et al. v. United States will linger in the courts for some months.  If one of our major parties were interested in border integrity and enforcement of immigration laws, Judge Hanen’s factual findings could provide much fodder for argument.  Unfortunately, we’re stuck with the Stupid Party and the Evil Party—which walk in lockstep with each other when it comes to the threat posed by 11 million illegal aliens in our midst.