A Political DREAM

Having now reviewed the official directive that some are characterizing as “DREAM by fiat,” I must say that I completely agree with the esteemed Mr. Likko that the directive is both clearly Constitutional and blatantly calculated to cause maximum outrage from the opponents of DREAM.

As Burt suggests, the practical effect of the directive is merely to set forth criteria under which the US Customs and Immigration Service should exercise its discretion to defer prosecution of deportation proceedings against certain individuals who entered the United States as children.  Though Burt does not refer to it directly, there is Supreme Court precedent that is directly on point.  Specifically, in Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court ruled unanimously (albeit with 2 concurring opinions) that the Food and Drug Administration had no obligation to undertake enforcement actions against the use of lethal injection drugs for the purposes of executing prisoners sentenced to death, and indeed, its decision not to undertake those actions was actually exempt from any kind of court review.  Importantly, there was, in that case, relatively little dispute that the usage the prisoners sought to prevent was in violation of the Food, Drug, and Cosmetics Act; despite this, the Court found that the decision as to whether and when the FDA would institute an enforcement action at all was wholly unreviewable under the Administrative Procedures Act.

Perhaps in response to this line of argument about the unbridled and unreviewable right of the USCIS to choose the cases it will and will not pursue, some on the Right have seized on a single line in the directive which states that “For individuals who are granted deferred action . . . USCIS shall accept applications to determine whether those individuals qualify for work authorization during this period of deferred action.”  This, opponents of the order seem to suggest, goes far beyond merely choosing not to exercise discretion in initiating removal proceedings but instead actively creates a new program, similar to what would have been created with DREAM, under which these illegal aliens will be granted work permits without Congressional authorization.  At minimum, the suggestion seems to be, this constitutes a “rule” that is subject to the requirements of the Administrative Procedure Act (and even then, they seem to suggest, is beyond the scope of the Executive’s authority).

This argument fails as well, however, as the directive neither grants nor orders the granting of any work permits.  Indeed, this particular sentence of the directive is effectively superfluous, as it simply restates what is already a longstanding and duly passed piece of rulemaking, codified at 8 CFR 274a.12(a)(10)(technically speaking, all of 274a.12(a) could apply, but subsection 10 is the most clearly relevant).

That rule states that:

“Any alien who is within a class of aliens described in paragraphs….(a)(10)… of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien’s authorization to work in the United States….”

Eligibility under section (a)(10) is allowed for any “alien granted withholding of deportation or removal for the period of time in that status, as evidenced by an employment authorization document issued by the Service.”

That rule was last amended at the end of the Bush administration, and so far as I can tell, the relevant portions of the rule have been in place for quite a lot longer than that. It pretty clearly contemplates that CIS will inevitably defer deportation proceedings against certain illegal aliens regardless of the recent directive and that those whose proceedings are deferred will be eligible for work permits at CIS’ discretion.

All that said, the way in which this directive was issued and is worded is maximally calculated to outrage opponents. Frankly, it’s also worded in such a way that it comes far closer to the line of unconstitutionality than it needs to. While it uses important catchphrases to make clear that it’s an exercise of discretion for legal purposes, the relatively formal procedures it purports to set up for determining whether to exercise that discretion give it at least a cursory similarity to rulemaking.  In effect, these procedures require a fairly detailed inquiry into the purported alien’s background, with the burden on the alleged alien, who is to make an “application” for determination on eligibility for the program.  This has the hallmarks of an unnecessarily labor-intensive and relatively formal procedure that would seem to at least partially undermine some of the allocation of resources rationale purportedly underlying the directive.

It’s still, in my opinion, very clearly on the “constitutional” side of the line, as none of these procedures are binding and do not appear to create any separate substantive or procedural rights.  Nonetheless, in formulating the directive in this manner, and then couching it primarily in terms of fairness to the purported illegal alien, it is a much closer call than it should be and it is also calculated to spark far more heat than light from both sides of the debate.  It is, in short, a cooly calculated political maneuver as much as it is an attempt to implement sage policy.  Unfortunately, as I’ve written before with this administration, its political calculations have a bad tendency to undermine its legal arguments, and thus the viability of what may otherwise be good policy.

Were the Administration more interested in assuring the implementation of its policy on this, to say nothing about doing less to undermine attempts to pass the actual DREAM Act, it could have achieved precisely the same effect as this directive by putting it in terms less clearly calculated to inspire the passions of opponents and more calculated to stay within the bounds of constitutionality.

It would have been nice, for instance, if the order had read something like this:

“The USCIS has more deportation cases than it can handle in a reasonably expeditious manner. As a result, many persons subject to deportation remain in this country for extended periods of time after USCIS has determined them eligible for deportation. Amongst these are many illegal aliens who present safety or security threats. Many more are aliens who willfully and knowingly violated the laws of the United States to enter into this country. Other aliens subject to deportation proceedings, however, were children brought into this country by their parents at the time of their entry and cannot be said to have willfully violated the laws of the United States.

The purpose of the United States’ immigration laws are ill served by treating these categories of aliens identically for purposes of the exercise of discretion in initiating and pursuing removal proceedings. The result of doing so is that those who present a safety or security threat to this country are permitted to remain as potential threats longer than is appropriate or necessary. Similarly, deportation proceedings against illegal aliens who knowingly violated this country’s laws to enter it are inappropriately and unnecessarily delayed, permitting them to potentially continue to benefit from their violations and reducing any deterrent effect of United States immigration law. By contrast, deportation proceedings against those who were children at the time of their illegal entry- and whose violation of immigration laws was thus presumably innocent- does nothing to increase the safety and security of this country, has no punitive basis, and provides little or no deterrent effect.

As such, the Secretary hereby directs that proceedings against persons meeting the criteria outlined below should immediately be given the lowest priority; absent exceptional circumstances, existing proceedings against persons meeting the criteria outlined below should be dropped or deferred, and future proceedings against persons meeting that criteria should likewise be deferred for a period of two years from the date of this order, subject to renewal. A decision to defer proceedings pursuant to this directive shall not render the subject thereof ineligible to seek a work permit pursuant to 8 C.F.R. 274a.12.”

(More at Memeorandum).