Appeals Court Rejects Challenge to Obama’s Deferred Action for Childhood Arrivals (DACA)

Susan Sullivan Lagon | April 8, 2015

Disapproval of a governmental action isn’t sufficient to get your day in court, no matter how intense that disapproval may be.  Back in August 2012, a group of Immigration and Customs Enforcement (ICE) agents sued their boss (then-DHS Secretary Janet Napolitano) over President Obama’s decision to allow undocumented minors to stay in the U.S. rather than be deported.  From the outset, this case seemed destined to get more attention and fare better in the blogosphere than in the judicial system.

The agents claimed that the President was substituting prosecutorial discretion for law, in effect usurping legislative powers by ignoring Congress’ explicit rejection of the DREAM Act while instructing agents to behave as if the DREAM Act had passed.  The president, they charged, was violating his constitutional duty to “take care that the laws are faithfully executed.”  But ICE agents wouldn’t seem the best plaintiffs to make the case of Congress, a coordinate branch, which was already busy filing suit over the President’s implementation of the Affordable Care Act.  To find a more direct link, the agents said they were being asked to violate their own oaths as enforcement officers and feared reprimands if they didn’t comply.  The Court didn’t buy that rationale, either.

The U.S. District Court for the Northern District of Texas dismissed the case, and this week the 5th Circuit Court of Appeals affirmed on the same grounds: The ICE agents don’t have standing to sue.  To demonstrate standing, plaintiffs must demonstrate that they have suffered some specific harm (actual or imminent) and not just a generalized grievance.  Next, they must show that the harm is directly attributable to a governmental action.  In this case, the burden is much heavier because the agents were attempting to show harm attributable to inaction—or at least deferred action– and any harm remained speculative.  It’s also difficult to make the case that compliance with the President’s application of prosecutorial discretion constitutes a sufficient “injury” to the plaintiffs that would be necessary to satisfy standing requirements. It is worth noting, however, that the courts did not rule on the merits of the agents’ case.  By denying standing, though, any further challenge to DACA will have to come from elsewhere.

What about the possibility of Supreme Court review?  Don’t bet on it.  The justices can avoid the dispute by invoking the political question doctrine, under which the judicial branch defers to the other co-equal branches on issues where the other branches are clearly entitled to act  (e.g., prosecutorial discretion for the executive, amending immigration laws for the legislative) or simply better equipped to find a resolution.  Consider the implications if the Supreme Court were to reverse the lower courts: Could there be precedent for executive branch personnel to sue cabinet secretaries every time they were asked to shift their emphasis in prosecutions, or issuing regulations, or changing priorities?  Surely this is the sort of “political thicket” the judicial branch would just as soon avoid and leave with the elected branches.

The upshot is that congressional opponents of DACA have lost a potential ally now that the courts have declined to take up the challenge.  As the recent DHS funding debacle in the House made clear, though, vocal opponents may once again resort to the appropriations process at the end of the fiscal year in their attempts to rein in the Obama administration.  In the Senate, it becomes even harder to justify the long delay over the confirmation vote for Attorney General nominee Loretta Lynch now that the court has sided with her interpretation of the DACA’s status, at least so far.

Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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