Should a small Texas court set immigration law for the nation?

April 18, 2016
A handmade sign to deter trespassers hangs in the front yard of Fernando Rivera Jr.'s house in Brownsville, Texas September 2, 2014. According to Rivera Jr, there is an open gate in the U.S.-Mexico border fence which immigrants would stroll through and onto the Rivera's property. The "Patriots" are a heavily armed group who patrol the U.S. border with Mexico, trying to deter immigrants from crossing the border illegally. The group, who portray themselves as defending the American way, use a strong display of force to intimidate anyone from making the crossing from Mexico into Texas. To critics, they are vigilantes spoiling for a fight. To the immigrants, they are another barrier to entry and to the U.S. Border Patrol, groups like this can either be a nuisance interfering with their operations or an aide in spotting migrants illegally trying to enter the country.  Picture taken September 2, 2014.  REUTERS/Rick Wilking (UNITED STATES - Tags: POLITICS SOCIETY IMMIGRATION CRIME LAW TPX IMAGES OF THE DAY) ATTENTION EDITORS: PICTURE 19 OF 20 FOR WIDER IMAGE PACKAGE 'DEFENDING THE AMERICAN WAY'. TO FIND ALL IMAGES SEARCH 'BROWNSVILLE WILKING' - RTR45NEW

A handmade sign to deter trespassers hangs in the front yard of Fernando Rivera Jr.’s house in Brownsville, Texas, September 2, 2014. REUTERS/Rick Wilking

Throughout the United States, millions of undocumented immigrants with American children live in fear of being deported — despite a federal program that could shield them. This danger has been present since February 2015, when a federal district court judge in a small Texas town ruled that the Obama administration’s protective program, the Deferred Action for Parents of American Citizens and Lawful Permanent Residents, or DAPA, could not prevent deportation anywhere in the nation. Six months later, the Fifth Circuit Court of Appeals affirmed that decision 2-1.

The Texas case, Texas v U.S.A. which the U.S. Supreme Court heard Tuesday morning, is one of the many that might be left undecided because of the sudden death of Supreme Court Justice Antonin Scalia. The sharp divisions among the justices make it likely that some cases will end in a 4-4 decision, which would leave the lower court rulings in effect. If that happens with Texas v. U.S.A — and the oral arguments Monday morning suggested it might – the Texas court’s decision could remain in effect indefinitely.

There was no real reason, however, for a nation-wide order in this case. Federal circuit-court decisions are usually binding only in the states within the circuit. The Department of Homeland Security did not have to accept what it — and many others — consider an erroneous ruling. The agency could, and should, have gone ahead with the deferred-deportation program outside the three Southern states — Texas, Louisiana and Mississippi – that make up the Fifth Circuit, by relying on a long tradition of agency non-acquiescence to judicial rulings an agency considers erroneous.

In fact, Homeland Security had good reason to limit the Texas rulings to the Fifth Circuit. More than 100 immigration experts have called the decisions “deeply flawed,” because the judges misunderstood, misinterpreted and were confused about the immigration laws. Moreover, the decision violates basic principles of law and of judicial decision-making.

One constitutional requirement for bringing a federal suit is that the plaintiffs have “standing” — that he or she can prove the defendant (in this case, the United States, because of the Obama administration’s executive action) inflicted a specific injury on them. Concrete evidence of the injury must be submitted to the court.

Yet, as the district judge conceded in his decision, the only state that even offered such evidence was Texas. So no other state should have been allowed to sue — Texas’ standing cannot also cover the other states.

Another equally fundamental principle is that an injunction, particularly against the government, should be as narrowly construed as possible. It must be limited to what is strictly necessary to provide full relief from the claimed injury — and nothing more.

This is not to say that the district and circuit judges can never have the authority to issue a nation-wide injunction against a federal official. Nationwide orders are sometimes necessary. But not here.

This latest phase of the immigration wars began on Nov. 20, 2014. Invoking the executive branch’s near-absolute discretion over deportation, Homeland Security Secretary Jeh C. Johnson established DAPA. The program would have deferred for three years the deportation of roughly 3.6 million undocumented immigrant parents of U.S. citizens and lawful permanent residents — if the parents had lived in the United States for at least five years and been law-abiding. Instead the department could concentrate its limited resources on criminals and threats to national security.

By avoiding the break-up of families, many of which had young children, the deferral program would have promoted values that underlie much of immigration law.  

The deferred-deportation program, which has solid public support — even overwhelming according to some polls – would have allowed these immigrants to come out of the shadows, legally able to work and drive. Their jobs would have produced substantial new tax revenues for the states and the federal government.

Despite this, the state of Texas promptly filed suit in Brownsville, where District Judge Andrew S. Hanen, known for his open hostility to the president’s immigration policies, is the senior active judge. On Feb. 16, 2015, Hanen ruled that Homeland Security’s adoption of the program violated the Administrative Procedure Act, and ordered the department not to implement DAPA anywhere in country. The Fifth Circuit upheld his ruling. The two conservative judges in the 2-1 ruling went beyond the district court’s decision to rule that the president and Homeland Security had no legal authority to adopt DAPA. Linda Greenhouse, the longtime Supreme Court reporter for the New York Times has described the Fifth Circuit as “antediluvian.”

The Homeland Security Department, 15 states and cities, as well as the District of Columbia, all asked both the trial and appellate courts to limit their ruling to their respective jurisdictions, or even to just the 26 state plaintiffs. Both courts refused.

The decision has been devastating for the eligible undocumented immigrants, 85 percent of whose children are citizens, and their families — a total of 10 million people, including some 4.3 million children under 18.

Meanwhile, the states that oppose the decision are losing millions of dollars in tax and other revenues that they had expected from the improved employment opportunities. California, for example, estimated that more than 1.2 million people would have been eligible for the program, which would have boosted tax revenues more than $900 million over five years. Even Texas, with possibly 600,000 people eligible, would have taken in an estimated $338 million more in state tax revenue over the next five years far more than the cost of its alleged injury from the deferral program.

Had the Department of Homeland Security ignored the Fifth Circuit Court’s injunction beyond its three states, it would not have done anything illegal or even unprecedented. For at least 90 years, the National Labor Relations Board, the Internal Revenue Service and the Immigration and Naturalization Service, the predecessor of Homeland Security, have all “non-acquiesced” in decisions they strongly disagreed with. They followed the rulings only in the states of the circuit that decided the case.

Although some lower court judges have been unhappy about this, it has continued without check by either Congress or the Supreme Court, and has been approved by distinguished scholars.

Without explicitly discussing agency non-acquiescence, the Supreme Court has provided many reasons for the practice. The most important is, as Chief Justice William H. Rehnquist emphasized, “the government is not in a position identical to that of a private litigant.” Government cases often involve important constitutional or statutory issues such as separation of powers, and federalism. These cases need to be argued over by different judges and lawyers to illuminate the issues for the Supreme Court to resolve. If Homeland Security had non-acquiesced in Texas v U.S. A., other suits would have been filed.

This inter-circuit dialogue is one of the most important by-products of the multi-circuit appellate system. Making the first trial or appellate court decision binding on the entire government frustrates this process.

Another critical consideration is that, unlike most private litigants, federal officials can be legally present everywhere. This makes it easy for lawyers to shop for a favorable judge when they want to challenge a nation-wide policy — which happened in this case.

Democrats are urging Republican senators to “Do your job” and hold hearings on Judge Merrick Garland’s nomination to the Supreme Court. In this case, the Homeland Security secretary should have done his.


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Security is the primary reason — we have a responsibility to know who is coming into this country. Fiscal responsibility and economic planning are key secondary reasons — we need to know that those who come here requiring financial assistance are the most deserving of US taxpayer money and that those who come here provide the US with exactly the labor pool we need to give our economy a maximum boost. And lastly, this is a big planet — there are many other countries from which immigrants can come to America other than Mexico. We should establish iron control over our borders, liberalize our legal immigration process, then put in place rules which would not favor an immigrant from one country over an immigrant from any other country. If Mexican-Americans and other Hispanics don’t support that proposal, at least we’ll know with which country their loyalty truly lies.

Posted by Welred | Report as abusive

Welred, and if Americans who aren’t hispanic in ancestry have a problem, what then? Lock them up in private prisons and deport them, too?

Posted by OxymorontoMoron | Report as abusive

Texas is part of Mexico. Looks like Mexico, smells like Mexico….. It’s Mexico.

Posted by Solidar | Report as abusive

Illegal immigrants. Not “undocumented”, “illegal”.

Posted by thebruce | Report as abusive

I look at the selfishness and shallowness of the typical American and I think we are shooting ourselves in the foot with the immigrant issue, especially with respect to Mexican and central American immigrants. They are generally good people and work harder and have better family values than the typical American. We will be stronger with them. It will take several generation for them to become the vacuous self absorbed weaklings that my coworkers and colleagues are. We should want them if we were smart, but we are not collectively. That’s why a dimwit like Trump is potentially going to be president and the likely president will be a fake liberal who will promote the old Reagan agenda. I don’t think the immigrants would be so dumb as to fall for what America falls for.

Posted by brotherkenny4 | Report as abusive

I agree we need a wall. The good people of the United States are sick and tired of having Texans just drive into America without travel visas or documents. Then these texans stay and take up resources, and fart in the restaurants.

Posted by Solidar | Report as abusive

“Should a small Texas court set immigration law for the nation?”
Sure! if you want the dullest tools in the shed doing the job for ya.

Posted by Whipsplash | Report as abusive

Should an avowed post-american president be allowed to fundamentally gut immigration law and open the borders wide?

Posted by GetReel | Report as abusive

Interesting that Mexican immigration peaked in 2007 during the last republican administration and has been on the decline ever since. But if you read right wing propaganda then facts will elude you.

Posted by Whipsplash | Report as abusive