Texas Federal Court Strikes Down DAPA - President's Order to Defer Deportation of 4.7 Million People

On Monday in the case of Texas v. United States federal District Judge Andrew S. Hanen issued a preliminary injunction against implementation of DAPA, the President's recent policy directive preventing the deportation of more than four million people. What was Judge Hanen's reasoning? Was it consistent with previous decisions of the United States Supreme Court?



DAPA stands for "Deferred Action for Parents of Americans and Lawful Permanent Residents." This lawsuit was brought by 26 states, including the state of Texas, to prevent the federal government from implementing DAPA. Judge Hanen had to decide two issues: first, did the states have "standing"; and second, should a preliminary injunction be entered prohibiting the federal government from implementing DAPA. Judge Hanen found that the states did have standing and that they were entitled to a preliminary injunction.

The critical factor in deciding each of those issues involved "harm." To have standing, Texas and the other states had to prove that DAPA would cause an "injury" to their legal rights. And to justify issuing a preliminary injunction, they had to prove that the harm they would suffer would be "irreparable" - that is, that the injury could not be undone.

To justify standing the state of Texas chose to focus on the cost of issuing drivers licenses. The state argued that it charges residents $24 to process an application for a drivers licence, but that the actual cost of issuing a license is actually much higher ... as much as $199. Accordingly, the state loses $175 for every drivers license that it issues. To justify the preliminary injunction, Texas argued and the court found that the state would not be able to recover those costs if after a full trial DAPA was declared unconstitutional ... that it would too late to revoke the licenses and get the money back.

There are several problems with the court's reasoning. First of all, there is nothing in DAPA that requires the states to issue drivers licenses to the parents of American citizens. The Equal Protection Clause might require that -- it's difficult to understand how these people are so different that the state can deny this basic service to them -- but the President's policy directive has nothing to do with drivers licenses. It simply states that these people will not be deported if they have jobs and have committed no crimes.

Second, there is nothing in DAPA that requires the states to issue drivers licenses at less than cost. If it truly costs the state of Texas $200 to process an application for a drivers license, then the state of Texas could simply choose to charge that amount or more for that service. If the states have rationally concluded that it makes sense to subsidize driving in order to stimulate their economies, there is no reason to believe that parents of American citizens or lawful resident aliens are any less likely to stimulate the economy than anyone else.

The third reason that Judge Hanen's order is wrong is that the states do not have the power to make immigration policy just because federal policy imposes costs upon the states. The Supreme Court has been crystal clear on this point. In Graham v. Richardson (1971) the Supreme Court ruled that the state of Pennsylvania and Arizona could not prohibit non-citizens from qualifying for welfare:

State laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage conflict with these overriding national policies in an area constitutionally entrusted to the Federal Government.

In Plyler v. Doe (1982) the Supreme Court struck down a Texas statute that prohibited the children of undocumented workers from attending the public schools. The Court stated:

The States enjoy no power with respect to the classification of aliens.

Three years ago in Arizona v. United States (2012) the Supreme Court struck down four provisions of S.B. 1070, the "show me your papers" law that also made it a crime for undocumented workers to apply for a job, and that attempted to implement an official state policy of "attrition through enforcement." The Supreme Court emphasized that the federal government has broad discretion in the enforcement of immigration laws -- and for very good reasons:

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Judge Hanen's order is not justified in any respect. DAPA does not cause any injury to the legal rights of the states; the states have no power to establish immigration policy; and the federal government enjoys broad discretion in the enforcement of immigration laws.