We found out this week that the “new” panel that will hear the actual DAPA appeal in the 5th Circuit Court of Appeals is actually the old panel. Judges Smith and Elrod were the majority decision in motions panel which declined to lift the stay put in place by Judge Hanen from the Federal District Court in Texas. Using polemics better suited for a political rally, Judge Hanen put a stop to DAPA and expanded DACA just as they were about to go into effect. Judges Smith and Elrod, although less “dynamic” in their political tilt, made it clear that they were swayed by Judge Hanen and not by the rather lackluster lawyering of the Department of Justice, and refused to lift the stay.
Most advocates for reasonable immigration reform (and quite of few active Republicans) were deflated when news broke on the makeup of the panel. There had been much hope created when the panel earlier in June had asked for briefings from both sides on whether or not the appeals panel to hear the case in July was bound by the findings and decisions of the motions panel that heard the case previously in the 5th Circuit (they are not). But the likelihood of either judge changing their position on the DAPA and expanded DACA memo borders on 0%.
What can Obama do? He can do what he should have done in February (and likely what he should have done in November 2014). Publish the proposed DAPA and expanded DACA policy in the Federal Register and comply with the Administrative Procedures Act (APA). Neither Judge Hanen, nor Judges Smith and Elrod struck down DAPA and expanded DAPA on constitutional grounds. Which is good, since the policy changes are not unconstitutional. Rather, the change in policy was stopped because Obama did not comply with the APA by first publishing the proposed changes and giving them the force of regulation.
The process of complying with the APA, if the rule is considered an “emergency” rule i straightforward. An emergency rule can be made effective in 60 days. Non-emergency rules can take longer. But think about it. we are now four months post the Stay ordered by Judge Hanen. Complying with the law here would have meant that we would have DAPA in place, or at the very least be very much closer to implementation than we are today.
So, why has Obama not complied with the APA? Let me give two reasons.
First, Obama does not think he has to, and by doing so he diminishes the “power” of the presidency. There is recent Supreme Court Precedent backing this position. In Perez v. Mortgage Bankers Association, the Supreme Court held that:
The APA distinguishes between two types of rules: So-called “legislative rules” are issued through notice-and-comment rulemaking, and have the “force and effect of law,” Chrysler Corp. v. Brown, 441 U. S. 281, 302–303. “Interpretive rules,” by contrast, are “issued . . . to advise the public of the agency’s construction of the statutes and rules which it administers,” Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99, do not require notice-and comment rulemaking.
. . . .
Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures to amend or repeal that rule.
As such, the Obama administration may feel that DAPA and expanded DACA are “interpretive rules” that do not require APA compliance, and that by doing so he would eviscerate the administration’s victory in Perez.
Second, and perhaps the real explanation, Obama believes that prolonging the fight over DAPA and expanded DACA into the presidential election cycle helps Democrats in their fight against a fractured GOP. It is quite clear given the recent crazy talk from Donald Trump and Scott Walker (and an even nuttier know-nothing Ann Coulter), that many members of the GOP have no idea how to win back the minority vote in America. Obviously, there are GOP contenders, like John Kasich and Jeb Bush who get it, but the vitriol is overshadowing common sense. Perhaps Obama knows (because he did it himself by intentionally delaying immigration reform in 2008), that by keeping the anti-immigration side of the GOP on high alert and in full crazy bloom, he can maximize the chances that the GOP cannot win back the White House in 2016.
The reader can decide what Obama’s motivation is, but the situation is this: DAPA and expanded DACA–designed to help millions is delayed. The 5th Circuit will reaffirm its prior decision. The Supreme Court may or may not take the case. If it takes the case, it will not issue a decision until June 2016, In the meantime millions of parents of US citizens will languish in an underground economy, families will be torn apart and separated by Obama’s fully operating “enforcement priorities” memo, the GOP controlled Congress will allow the tail to keep wagging the dog on immigration reform, and we will be no closer to a real solution on immigration reform. Thanks Obama. Thanks for nothing.
Chuck, I have great respect for your opinions on any immigration legal or ethical matter, so I will take some time to think about this column. In the meantime I'd like to give a first reaction.
You attribute to Obama a fighting spirit I'm not sure he has. My impression is that he avoided working on immigration during the first years of his presidency because he was afraid of the GOP Ultras. He hoped he could win over moderates with his aggressive deportation policies with the idea of a grand bargain on immigration (possibly with a stronger Democratic majority. I didn't say I thought he was smart about this). Remember how he avoided trying to blame the GOP for destroying the economy, never asking for any accounting for the great recession? He did nothing controversial, trying to govern as a moderate Republican. Of course the GOP read this as weakness, and have been on the offensive ever since.
When things got so bad in immigration that he was really in serious danger of chasing every Latin group out of the Democratic party, finally he decided he had to act fast. As per his usual small-ball style, he went for the smallest DACA definition he could – a definition that won many GOP votes in Congress when it was part of the DREAM Act.
Do you have a different understanding of these earlier steps? None of this background makes me think Obama does anything at all with the intention of taking a stand and fighting for it. On the contrary, I think he decided to skip Notice & Comment rulemaking precisely in order to make a fait accompli by getting a large enough contingent of mixed-status families into documented status BEFORE the political season really started, making it more difficult for his replacement to roll it back.
I think this explanation fits Obama's Charlie Brown personality better than your idea that he miraculously foresaw that the wingnuts would eventually lose their grip on the GOP. I'm struck that you have such a positive impression of Obama's political skills while considering him Machiavellian. Thanks for a thought-provoking column.