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  • Article: DAPA, Obama, the Supreme Court, and Politics. By Charles Kuck

    DAPA, Obama, the Supreme Court, and Politics

    by


    November 2014, after a stinging defeat at the polls, and with little left to lose in his political legacy, Obama announced a series of DHS policy memos that, when implemented, would rearrange his deportation priorities (after becoming the Deportation President with more than 2.5 million people deported), and create formalized system of Deferred Action to help long term resident undocumented people (the backbone of much of our service sector) to obtain work permits (DAPA).  Obama apparently preferred to do this policy changes by memo, arguing that they were not "substantive" changes to regulation, and thus did not need to go through the formal Administrative Procedures Act (APA) rulemaking processing (which takes about 6 months, or less, done properly).

    State Attorney Generals, led by Texas promptly brought suit, under a series of novel theories, arguing that this was no mere policy change, but rather a substantive fix with massive benefits and enormous costs to the states. Much of that was pure hyperbole, but when you can pick the right judge and luck into the right appeals court, even hyperbole can stop a President.  The District Court stopped Obama's DAPA program, and the 5th Circuit Court of Appeals, for the second time, upheld that decision.  Of course, to anyone who understood the issues, and knew the judges, this most recent decision is no surprise at all.  We knew that this case was eventually headed to the Supreme Court.  The only question was whether the Supreme Court would hear this case in the 2016 term and decide it right in the middle of the Presidential election, or whether it would deferred until the 2017 term.  

    It looks like the 5th Circuit has given Obama enough time to file his case with the Supreme Court.  And, that the Supreme Court will likely take this case, given the novel legal theories espoused by the 5th Circuit in upholding the injunction stopping DAPA.  And, when they issue a decision on this case, likely in late June 2016, the GOP convention will likely have just ended and the Democratic Convention will just be starting.  Can you imagine a better time to start processing the DAPA cases?

    As for me, I believe that the Supreme Court will overturn the 5th Circuit, likely unanimously, or in a 8-1 decision. The issues  are very clear here. Can a state create an injury, claim that injury was caused by an executive branch policy, and then sue to stop that policy saying they were injured.  That among other novel legal theories will be on the Supreme Court's plate.

    All that said, Obama, could tomorrow, publish a proposed or emergency regulation in the Federal Register, and within six months DAPA would be in effect, and this lawsuit would be moot.  You ask, Why would Obama not do that? Some argue that the 5th Circuit's decision on the "substantive" changes in the DAPA memo (completely made up by the 5th Circuit) bars the administration from proceeding on rule making. I am not sure I agree.  I believe Obama could publish the proposed regulations and that would force the states to sue again in another matter.  After all, if he had published the DAPA regulation when the District Court created the injunction, we would have DAPA today.  The answer lies, clearly, in politics. Other than money, the answer is almost always politics.  Someone once said that I gave too much credit to Obama being Machiavellian.  The reality is, you do not need to be Machiavelli to see this unfolding. In the middle of a presidential election, when the GOP candidates are screaming and vilifying immigrants, the Democrats can come in with long faces and sadly explain to voting immigrant communities--See Obama tried, but those big, bad Republicans stopped us from helping you.  This is the standard Obama line, and he used it in 2008 and 2012, and it worked. Hillary will (and already has started) using it for 2016.  

    The sad part is that the GOP, like Charlie Brown going to kick the football, falls into the trap every four years, because it refuses to ignore the eugenics, anti-population and anti-immigrants minority in the GOP and simply fix immigration law.  If the GOP would do this before the election, they, perhaps, could stop being the national minority party in presidential elections.  Given GOP politics at this time, don't count on this happening.  

    Finally, to those millions of immigrants out there would will eventually benefit from DAPA, and their employers (yes they all already are working and paying taxes)--Keep the faith. This is a fight we will eventually win. Until then keep evidence of your good moral character.  Keep paying your taxes.  Take good care of your children and spouses.  And wait for the Congress of the United States to finally catch up to the reality that without these workers, much of our service sector would collapse. 

     I wish we could just stop playing politics with peoples' lives.  

    This post originally appeared on "Musings on Immigration: An Immigraiton Attorney's Perspective on Life, Liberty and Happiness". Reprinted with permission.


    About The Author

    Charles Kuck is the Managing Partner of Kuck Immigration Partners LLC-The Immigration Law Firm, and oversees its nationwide immigration practice. His practice focuses on U.S. Immigration and Nationality Law and international migration matters. Mr. Kuck assists employers and employees with business and professional visas, labor certifications, immigrant visas, consular representation, and citizenship matters. Mr. Kuck also maintains an active Federal Court practice focusing on immigration issues.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 7 Comments
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      Should Obama be referred to as "the Deportation President with more than 2.5 million people deported)"? I would like to know more about the basis for that figure. My understanding is that Obama is counting removals that previous presidents did not count. I checked the DHS immigration statistics report issued in November of 2014, and found the following statistics for 2013 removals:

      In 2013, DHS removed approximately 438,000 aliens from the United States.
      Expedited removal orders accounted for 44% of all removals. 

      Reinstatements of final orders accounted for 39% of all removals. 

      See http://www.dhs.gov/sites/default/fil...nt_ar_2013.pdf

      That doesn't leave many removals based on a deportation order. So where does the 2.5 million deportation figure come from?
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      I know that reinstating a final order technically is a deportation, but those aliens have already been counted.
    1. Pessimistic's Avatar
      Pessimistic -
      The 5th Circuit went further than Judge Hanen by saying that Obama lacked the "statutory authority" for DAPA. If the Supreme Court is going to overturn this, 1. Antonin Scalia is the one who has to agree to hear the case and 2. it will have to prove there is statutory authorization for DAPA, which of course is NOT detailed in the law.
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      For another perspective on the legal issues, see http://www.theblaze.com/stories/2015...supreme-court/
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by Pessimistic View Post
      The 5th Circuit went further than Judge Hanen by saying that Obama lacked the "statutory authority" for DAPA. If the Supreme Court is going to overturn this, 1. Antonin Scalia is the one who has to agree to hear the case and 2. it will have to prove there is statutory authorization for DAPA, which of course is NOT detailed in the law.
      President Obama can use discretionary authority not to deport people. What he cannot do is use prosecutorial discretion to give work permits. As an INS manager I got the yearly lecture about prosecutorial discretion. It can be used not to take an official action, but it cannot be used to grant a benefit. Employment authorization is a benefit, as is the document given to DACA applicants authorizing them to remain legally in the United States for two years. I first saw the DACA memo when it came to my desk in July of 2010 with a request for comments. I was one of the USCIS authorities on the use of deferred action and I wrote a long memo opposing the proposed use of deferred action. I do believe in the Dream Act for children, but I believe deferred action was misused in DACA, and would be even more of a problem with DAPA. The children were innocent participants in illegal entry. That is not true of the parents.
    1. Nolan Rappaport's Avatar
      Nolan Rappaport -
      Quote Originally Posted by Retired INS View Post
      President Obama can use discretionary authority not to deport people. What he cannot do is use prosecutorial discretion to give work permits. As an INS manager I got the yearly lecture about prosecutorial discretion. It can be used not to take an official action, but it cannot be used to grant a benefit. Employment authorization is a benefit, as is the document given to DACA applicants authorizing them to remain legally in the United States for two years. I first saw the DACA memo when it came to my desk in July of 2010 with a request for comments. I was one of the USCIS authorities on the use of deferred action and I wrote a long memo opposing the proposed use of deferred action. I do believe in the Dream Act for children, but I believe deferred action was misused in DACA, and would be even more of a problem with DAPA. The children were innocent participants in illegal entry. That is not true of the parents.
      You should make your memo available to the ILW.com readers.
    1. Retired INS's Avatar
      Retired INS -
      Quote Originally Posted by Nolan Rappaport View Post
      You should make your memo available to the ILW.com readers.
      i don't know who to send it to. I have the draft memo from 2010 and my response to it. I can be contacted at driding33@gmail.com if anyone wants to give me an email address to send this to.

      Don Riding
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