The United States Court of Appeals for the Fifth Circuit heard oral arguments this week in State of Texas v. United States. A three-judge panel is considering the U.S. Government’s request for an emergency stay of the preliminary injunction issued by United States District Court Judge Andrew Hanen on February 17, 2015. A recording of the nearly 2 1/2 hour oral argument is available here.
My sense after listening to the recording is that the Fifth Circuit has concerns about the extent to which the November 20, 2014 Johnson Memorandum (de-prioritizing removal of persons under the Deferred Action for Parental Accountability (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) programs) constitutes a reviewable agency action. The issue being whether Department of Homeland Security (DHS) Secretary Jeh Johnson did an end run around the Administrative Procedures Act (APA) in fashioning a program prospectively granting relief to millions without giving the public notice and an opportunity to comment.
If the Government is right, then the APA was not invoked because the Johnson Memorandum is a non-prosecution letter encapsulating DHS’s prosecutorial discretion to decide who not to deport. If the States are right, then DHS Secretary Johnson created a benefit disguised in the form of a policy memorandum involving systematic conferral of employment authorization on millions of lawbreakers, which the States argue would place a strain on state government as those individuals could then apply for driver’s licenses and seek access to education.
Judge Stephen Higginson seemed sympathetic with the Government’s position, pointing out a number of times that the low percentage of denials and the high number of Requests for Evidence in the existing DACA program, coupled with the record number of deportations carried out by DHS under the Obama Administration, could be construed as evidence supporting the prosecutorial discretion which arguably lies at the heart of the Johnson Memorandum.
Judge Jennifer Elrod, on the other hand, expressed skepticism that the Government had demonstrated that it would be likely to be succeed on the merits. Her questions suggested agreement with the District Court that the Government was poised to confer immigration benefits en masse by wrapping up employment authorization with a policy of non-prosecution without affording the public an opportunity to have any say in the matter.
Judge Jerry Smith, a Ronald Reagan appointee, asked fewer questions than his counterparts on the panel so was a bit harder to read.
It will be interesting to see which side the judges come down on, but if the tenor of the exchanges between the judges and the attorneys for the respective parties provides any indication, I think this will be a close decision.