A federal circuit court on Tuesday threw out a state lawsuit against the Obama administration over its executive actions on immigration.
No, not that lawsuit.
The Obama administration’s 2014 executive actions on immigration — which would allow millions of unauthorized immigrants to apply for protection from deportation and work permits — have been on hold since February, as a lawsuit filed by 26 states makes its way through the courts.
But there’s a smaller, separate case that just Mississippi (with a group of federal immigration agents) filed back in 2012, challenging an earlier deferred-action program for young unauthorized immigrants. And it’s that lawsuit that the Fifth Circuit tossed out.
This week’s ruling is far from a perfect prediction of how the Fifth Circuit will rule in the 26-state lawsuit. The cases deal with different issues and will likely be heard by different judges. But there’s one big reason the administration’s supporters are taking heart: this ruling agrees with the federal government about how deferred action would actually work, which places the program within the bounds of what the government’s allowed to do.
The Mississippi lawsuit was an attempt to stop the administration’s original deferred-action program in 2012, which protected young unauthorized immigrants who’d been brought to the US as children from deportation.The 26-state lawsuit is different: it is suing to stop the November 2014 expansion of that program. That executive action adds two new groups of people to the program: unauthorized immigrants who came to the US as children or teens but were too old to qualify for deferred action in 2012, and unauthorized immigrant parents of US citizens or permanent residents. These expansions — especially the program for parents — would affect many more immigrants than the original deferred-action program.
Both lawsuits argue that the Obama administration’s actions hurt the state — they have to show harm to have standing to bring any lawsuit in the first place.
Mississippi’s version of this claim is sloppier than the one the Texas-led suit makes.
As the Tuesday ruling notes, Mississippi didn’t even bother to show that any immigrants who were eligible for the 2012 deferred-action program lived in the state. It used statistics from 2006 as evidence that unauthorized immigration was bad for Mississippi, but didn’t explain how giving relief from deportation to any of those immigrants would be worse.
The circuit court judges pointed out that for all they knew, the opposite could be true — maybe because of the deferred-action program, the federal government was able to focus on deporting the unauthorized immigrants who were really costing Mississippi the most money.
The Texas-led suit isn’t perfect on this front. It did make a lot of claims about how states would be harmed, but didn’t back up most of them with much data. But there was one particular case where the state did seem to deliver, in the judgment of federal judge Andrew Hanen. Texas provided an estimate of how much it would cost to give driver’s licenses to the immigrants who’d be newly eligible for them after getting deferred action — to show that the new program would be financially damaging. Based on that alone, Hanen said, there was enough evidence that states would be harmed that they’d legally be allowed to sue the federal government.
Why this ruling might help the Obama administration anyway
Of course, Judge Hanen didn’t just put the brakes on the Obama administration’s 2014 actions because the states were legally allowed to sue. He also ruled there was a good case that the states were right: that the actions were unconstitutional. And this week’s ruling shows that on that count, the Fifth Circuit might disagree.
Judge Hanen ruled in November that the administration didn’t follow the Administrative Procedures Act, which sets the typical procedure for making federal regulations. But the question there is what counts as a regulation.
The Obama administration argues that the deferred-action programs don’t count as regulations because they still give individual immigration agents discretion to accept or reject each applicant on a case-by-case basis. The administration’s opponents, including the 26 states, say there’s no evidence that agents are actually allowed to use discretion to reject applicants — which means the administration’s “standards” for applicants are basically rules.
Judge Hanen, in February, sided with the states. But in this week’s opinion, the Fifth Circuit said otherwise:
The (2012) Napolitano Directive makes it clear that the Agents shall exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis […] The 2014 supplemental directive, which also supplements DACA, reinforces this approach to the application of deferred action.
The question of what “prosecutorial discretion” really means is one the Obama administration is confronting on multiple immigration fronts right now: both this lawsuit about who shouldn’t be deported, and its policies guiding who should be. And it’s likely that the fight is going to spread to other areas of federal policy, as more policymaking goes through the executive branch rather than Congress. This circuit court decision doesn’t settle the question — heck, it’s possible the court will overrule itself to side with the states in the bigger lawsuit later this spring. But it’s certainly a better sign for the administration than it is for the states.