Millions of undocumented immigrants — and legions of immigration lawyers — are holding their breath. Last November they embarked on a legal roller coaster ride when President Barack Obama issued an executive action granting an estimated 5 million undocumented parents of U.S. citizen children temporary relief from deportation — a legal move that immigration scholars are increasingly starting to question.
The initial euphoria in the wake of Obama’s decree, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, was quickly extinguished. A federal judge in Texas blocked the action in February, after Texas Gov. Greg Abbott, backed by 25 other states, filed a lawsuit citing the economic burden Obama’s action would impose on their state governments. The Obama administration, in turn, attempted to persuade an appeals court last month to lift the injunction.
But as the Fifth U.S. Circuit Court of Appeals prepares to render a decision on Obama’s appeal in the coming days, prominent legal scholars are pointing to shortcomings in the administration’s decision to pursue executive action — and some of them believe it’s highly likely Obama’s move will ultimately fail in court.
Legal scholars say the Obama administration should have issued a longer-lasting formal regulation also known as a substantive rule, which would have protected immigrants from deportation, as opposed to a policy, which makes protection from deportation more of a privilege — a privilege that experts say can more easily be abolished.
Furthermore, analysts say, the administration should have more finely characterized who will benefit from deportation relief, and how broadly that relief is defined. According to immigration lawyers, this amounts to a strategic error that may come to define Obama’s immigration legacy — one already marred by the fact that the government has deported more than 2 million people under Obama’s watch.
“I think the rule is too narrow and should have been broader and covered the parents of Dreamers, not just the parents of citizens,” said Michael Winshie, a law professor at Yale University, referring to young undocumented immigrants brought to the United States by their parents. “Number two, I would have done it earlier. The president waited and waited, kept saying, ‘Oh, I'm going to try and work things out with Congress.’ Things never worked out,” he said, adding that it amounted to a failed political strategy to win the hearts and minds of Republicans.
As a result, immigrants face “an even more dysfunctional” system, says Peter Schey, executive director of the Los Angeles-based Center for Human Rights and Constitutional Rights, and one of the country's pre-eminent immigration litigators.
At the heart of Obama's legal problems, says Schey, is the difference between explaining and extending the law. “The administration decided to issue DAPA/DACA as a ‘policy’ (basically a ‘privilege’ for applicants) that can be changed overnight by any future administration,” he wrote in a widely circulated April 10 memo. What Obama should have released, he added, was a “formal ‘regulation’ (also called a ‘substantive rule’) that extends real rights to applicants and cannot be cancelled overnight.”
Though he believes that Republicans would have challenged DAPA regulations with just as much zeal, Schey said that issuing regulations would have made the administration's case stronger. “Published regulations are more formal, more prevalent and give more rights than just issuing a policy by the head of the Department of Homeland Security (DHS),” he told Al Jazeera. One of the main reasons for the decision to issue a policy statement instead of a regulation, Schey said, is the deeply rooted opposition of DHS officials and employees to issuing regulations that empower immigrants by “giving people rights.”
Schey said re-issuing DAPA as a set of regulations could be a way to circumvent the legal opposition. “I think the outcomes of the challenge to this DAPA are very difficult to predict,” he said. “The best one can say is that the odds are 50-50.”
Maria Elena Hincapie, executive director of the National Immigration Law Center, was more optimistic.
“The Republicans and the opposition to these executive actions know that they're eventually going to lose,” Hincapie said. “They know that it's inevitable that these laws are eventually going to be implemented and that the law is very clear, and that the president acted within his constitutional authority.”
For his part, Muzaffar Chishti, director of the Migration Policy Institute office at the New York University School of Law, both credits and questions the Obama administration’s choices. He called Obama's previous moves to reduce the number and kinds of people being deported “historic.” But he added that the Obama administration should have predicted the legal challenges that it now faces.
Regardless of what happens with the appeal of the preliminary injunction in the next few days, Chishti said, “We can predict that this is going to the Supreme Court.” That, he said, means that the legal roller coaster will not stop until mid-June of 2016.
“No one can predict how the Supreme Court will feel about it, but my guess is that this will be decided by Justice Kennedy,” Chishti said, referring to Justice Anthony Kennedy’s well-established role as the tie-breaking swing vote on the court. How he will vote on the executive order case is an open question.
But the more important issue to look at, he added, is that the people who brought the lawsuit may win, regardless of the outcome in court. “They (the Republicans) are not necessarily waiting to win the legal argument,” Chishti said. “They are biding time, trying to run out clock so that the executive actions do not see light of day in the Obama administration.”