Neither liberal nor conservative judges seem able to do immigration law right. The conservative Fifth Circuit Court erred in 2015 when it halted Deferred Action for Parents of Americans (DAPA), the Obama administration's program giving undocumented parents of American citizens a two-year reprieve from deportation. And this week a Northern District of Californian judge, Clinton appointee William Alsup, was equally wrong in issuing an injunction barring the Trump administration from scrapping DAPA's precursor. Deferred Action for Childhood Arrivals (DACA) gave a similar reprieve to about 700,000 undocumented aliens brought to this country as children. Alsup not only ordered the administration to keep the program in place but ordered it to renew the expired DACA status of the 15,000 or so Dremaers till the case is resolved.
The judge's intentions are laudable. But when it comes to immigration enforcement, the executive has vast discretion to set priorities. It can decide to throw the book at immigrants or not as it wishes. Courts can't really stop it.
I argued back in 2015 that conservatives accusing the Obama administration of engaging in a "power grab" by implementing DAPA were wrong. The Immigration and Nationality Act and other laws have explicitly given the president huge grants of authority to enforce the country's immigration rules. An executive can't unilaterally hand green cards or citizenship to foreigners, but he can decide whose deportation gets prioritized and whose is formally deferred. And those who are granted a deferral also, by statue, become eligible for work authorization and drivers' licenses, because it makes no sense for people to be allowed to live in the country while being barred from earning a living or driving to their jobs.
But by the same token, an executive can also choose not to defer deportations. He can launch mass deportations of unauthorized foreigners if he wants. That's odious, but sadly, it's legal.
Alsup's ruling admits that an executive has wide-ranging authority to "replace old policies [on immigration enforcement] with new policies." So why did he rule against the Trump administration? Because instead of simply invoking the administration's discretionary authority, Attorney General Jeff Sessions offered a legal argument against DACA that the judge found manifestly faulty. This made Sessions' decision "arbitrary, capricious, and an abuse of discretion," Alsup claimed, giving him solid grounds to overrule it.
Alsup is right about Sessions' argument, yet wrong in his final conclusion.
Sessions claimed DACA was illegal because Obama created it "without any proper statutory authorization." In fact, he insisted, it was an "unconstitutional exercise of authority by the Executive Branch" because Obama was trying to accomplish an end that Congress expressly said it didn't want when it repeatedly declined to pass the DREAM Act, a bill that would have given undocumented minors (known as "DREAMers") a path to permanent lawful residency and citizenship.
Every part of that claim is false, and Alsup did a spectacular job of debunking it.
For starters, DACA grew out of a long history of discretionary relief programs. In 1956, the Eisenhower administration gave relief to tens of thousands of refugees after the failed Hungarian revolution. Ronald Reagan instituted the Family Fairness Program, which without any statutory authorization extended voluntary departure to children whose parents were in the process of obtaining legal status under the 1986 "amnesty" bill. George H.W. Bush extended this program to cover spouses of such aliens.
Nor did such programs only apply to a small number of individuals whose petitions were considered one by one, as DACA opponents like to argue. They offered relief to large classes of people—in Bush's case, 1.5 million spouses.
If Congress had thought any of this was wrong, it would have objected. But it didn't. Congress understood that a nation's law enforcement needs are infinite and its law enforcement resources are finite. The executive therefore deserves wide latitude to set priorities. That's why, even though the practice of indefinitely deferring deportation against classes of aliens began as early as 1975 without express statutory authorization, both the Supreme Court and Congress soon accepted it as standard practice. Congress explicitly referred to deferred deportation as a legit practice in the 2005 REAL ID Act, even requiring the executive to hand drivers' licenses and work authorization to unauthorized aliens once they had been handed a formal reprieve.
If Congress had stepped in and explicitly barred an administration from protecting a certain class of aliens, things would of course be different. And indeed, Sessions believes that by failing to pass the DREAM Act, Congress effectively signaled that it didn't want to protect the class protected by DACA. But as Alsup noted, DACA and the DREAM Act are hardly identical. The DREAM Act would have offered permanent lawful status. DACA offers only a two-year, revocable reprieve from deportation.
Sessions also invoked the Fifth Circuit Court's decision to overrule DAPA to justify revoking DACA, arguing that DACA is riddled with the same legal defects that plague DAPA. But that too isn't true.
One reason the Fifth Circuit found DAPA unlawful is that Congress had created an elaborate process for parents of American citizens to gain sponsorship. If DAPA were allowed to stand, it said, that would constitute an end-run around the process. That reasoning is also flawed: The sponsorship process applies for permanent residency, and DAPA, like DACA, merely offers a temporary reprieve from deportation. In any case, there is no analogous, family-based process for DREAMers, so they aren't doing any end run around anything. The rationale for extending them relief is that they had no say in being brought to this country without authorization and hence had no intent to break the law.
Alsup also pointed out that it was one thing to scrap DAPA, given that it hadn't been implemented. It's quite another to eliminate DACA, given that it has been in effect for five years and 700,000 people rely on its protection. Ninety-one percent of those people have jobs, and 45 percent are enrolled in school. If they are unable to renew their status, all of this would be jeopardized, even if Congress subsequently passes a fix.
Alsup's heart might be in the right place, and Sessions' case is certainly flawed. But as George Mason University law professor Ilya Somin notes, "Sessions' analysis doesn't have to be right to serve as some minimal, not completely arbitrary, justification for ending DACA." Alsup's ruling is highly likely to be overturned.
What one executive giveth, another can taketh away. Courts simply aren't a good venue to seek reliable protections for DREAMers. That is Congress' job, and the friends of freedom should fight tooth and nail to make sure it does it.