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David Leopold: The Beginning Of The End of The GOP Lawsuit Against President Obama’s Immigration Executive Actions

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No, the 5th circuit court of appeals has not issued a final decision in the lawsuit brought by the State of Texas and 26 other Republican Governors and Attorneys General against DACA expansion and DAPA.  But it did issue an opinion yesterday dismissing Crane vs. Napolitano, a challenge to the Administration’s 2012 DACA program.  The Crane lawsuit was filed by a several ICE agents and the State of Mississippi.

A three judge panel of the 5th Circuit Court of Appeals, (including two (2) GOP appointees), unanimously ruled that the lawsuit should be dismissed because the ICE agents and the State of Mississippi lacked standing to sue.  The 5th circuit concluded they could not show DACA caused them “concrete and particularized” injury which is a legal requirement for standing.  And while the case did not involve the Texas challenge to DAPA and DACA expansion, yesterday’s appeals court’s decision in Crane is enormously important to the Texas lawsuit for two reasons:

First, the 5th circuit emphasized that the law of standing is designed to keep politics out of the courtroom.  A court should be especially careful, so the 5th appeals court stated, when it’s being asked to decide that an executive policy is unconstitutional:

“’The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.’ ‘In keeping with the purpose of this doctrine, ‘[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.’”

That’s directly applicable to Judge Hanen’s decision in the Texas case because he found the plaintiff states had standing to challenge the constitutionality of the President’s executive actions on deportations.  (Coincidentally, yesterday, Judge Hanen also refused to lift the stay of his injunction. The 5th Circuit holds a hearing on that very issue next Friday, April 17th and will soon hold a hearing on the injunction itself.)

Second, the 5th Circuit’s decision in Crane severely undercuts Judge Hanen’s opinion that DACA expansion and DAPA violate the technical rule making requirements of the Administrative Procedures Act.  To get there Judge Hanen concluded that executive actions did not allow for individualized, case-by-case decisions on deferred action.  In Crane the 5th Circuit pretty much eviscerated this theory stating:

The Napolitano Directive makes it clear that the Agents shall exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis:

[Our Nation’s immigration laws] are not designed to be blindly enforced without consideration given to the individual circumstances of each case.


With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE) . . . [and] who meet the above criteria, ICE . . . should immediately exercise their discretion, on an individual basis . . . .

(So much for Judge Hanen’s conclusion that DAPA and DACA expansion violate the rule making requirements of the APA)

And, while DAPA and DACA expansion were not before the appeals court in Crane, the Court nevertheless noted the programs’ similar case-by-case discretionary approach to deferred action:

The 2014 supplemental directive, which also supplements DACA, reinforces this approach to the application of deferred action:

Under any of the proposals outlined above, immigration officers will be provided specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.

While Crane does not control the outcome of the Texas litigation, it’s certainly a very good sign for the 5 million DREAMers and undocumented parents who may be eligible to apply for a temporary deportation reprieve under the President’s executive actions.

It also shows what can happen when Judges leave their politics at the courtroom door.