Monthly Archives: June 2016

The Supreme Court’s Tie in U.S. v. Texas Harms New York

Today, June 23, 2016, the U.S. Supreme Court issued an Order merely stating that the Fifth Circuit’s judgment in U.S. v. Texas was affirmed by an equally divided Court.

There was no explanation. There were no opinions issued on the multiple serious and important questions raised in the case.

However, this order allows the continuance of  the nationwide preliminary injunction that prevents the Department of Homeland Security from implementing the DAPA, expanded DACA guidance explained in my prior post.   There are deep disappointments and consequences for those individuals who would have benefited through DAPA/expanded DACA.  But, also, as explained in my prior post, New York State and City (and other states and localities) are significantly harmed by this decision.  The case now returns to the district court in Texas.


Waiting for the decision in U.S. v. Texas: Its impact on New York State and City

By the end of June, the U.S. Supreme Court is expected to decide the U.S. v. Texas case.

The state of Texas claimed that it was harmed by an administrative guidance from the federal Secretary of Homeland Security that designated as eligible for “deferred action” certain parents of minor U.S. citizens and permanent residents and an additional group of non-citizens who came to the country as children because Texas would have increased drivers’ license processing costs for that population.

“Deferred action” is the long-standing designation that immigration authorities use to indicate that removal (sometimes called deportation) proceedings will not be initiated (i.e. deferred) against certain non-citizens for a temporary time period.   However, the state of New York joined a number of other states, and Mayor of New York City joined a number of localities in Amicus (friends of the court) briefs that argued the contrary; that the guidance provided concrete financial, social and public safety benefits to states and localities. In the view of New York State and City, if the Supreme Court’s decision favors Texas, New York and other states will be significantly harmed.  Further, these states asserted that Texas brought the lawsuit not because it was suffering any real harm, but because it had a political goal it could not achieve through democratic means, i.e. that some Texas public officials opposed the expansion of deferred action for political reasons, and not because of concerns about the cost of drivers’ license processing.

To understand the consequences of this case for New York State and City and other states and localities requires some background on the administrative immigration system, and the issues before the Supreme Court. The Secretary of Homeland Security issued three related guidance memorandums about immigration enforcement.   One memo designated three priorities for expenditure of the agency’s limited resources afforded by Congress for the purpose of the removal of non-citizens. The first priority is non-citizens who are threats to national security including those suspected of terrorism, border security (those apprehended at ports or the border) and public safety, including those convicted of serious crimes.   Second priority includes persons convicted of other crimes and recent immigration law violators. Third priority includes those who have final orders of removal. This guidance memo was not challenged as there is general agreement that an agency has the legal discretion to set priorities and to utilize its limited resources to achieve those priorities. The resources available allow Homeland Security to remove about four hundred thousand non-citizens a year, while there are an estimated eleven million undocumented non-citizens in the country. It is inevitable, therefore, that there will be significant numbers of undocumented non-citizens residing in states who would not be the target of immediate immigration enforcement. Texas explicitly did not challenge this memorandum, thereby conceding that the federal government had the authority to allow non-citizens to remain in the U.S. and in Texas.

800px-Sl-shadowTwo other memorandums added transparent administrative direction about how to handle certain subsets of non-citizens who do not fall into these enforcement priorities and are at the lowest priority level. They both addressed the implementation the long-standing immigration administrative practice of internal directives designating certain undocumented non-citizens as deferred action based on various humanitarian criteria. A 2012 memo entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” set criteria for deferred action for certain non-citizens who had entered the U.S. as children.  This guidance known as DACA applies to those who entered the U.S before 2007 when under the age of sixteen, who were under 31 in 2012 and meet additional educational and public safety criteria.   This memorandum was not challenged and therefore DACA continues. Nationwide 636,324 non-citizens were designated DACA as of December 2014. The Migration Policy Institute estimates 76,000 non-citizens are DACA eligible in New York.

The challenged guidance memo was issued in 2014 and is entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents.” It expanded DACA by considering non-citizens who entered up to 2010 as children regardless of their current age if they met all other criteria, and by designating the deferred action time to three instead of two years. It further directed a process similar to DACA for deferred action for certain parents of U.S. citizen or permanent resident children who had continuously resided in the U.S. since January 1, 2010, were not enforcement priorities, and did not have other adverse factors making discretion inappropriate.  This is called DAPA and also carries a three-year time designation. DAPA could potentially apply to 3.8 million non-citizens nationwide, seventy percent of whom have resided in the U.S. for at least ten years. The Migration Policy Institute estimates that DAPA could apply to 231,000 non-citizens in New York.

Both deferred action memorandums state that they are setting forth policy for the exercise of prosecutorial discretion and deferred action within the context of current law, and that they do not confer any substantive right, immigration status, or pathway to citizenship. They, like other administrative guidance, are subject to change as a matter of administrative discretion.   The memos also note that pursuant to a federal statute and long standing federal regulation established under that statutory authority, those with deferred action can apply for employment authorization.   Non-citizens designated as employment authorized can then apply for a social security number for the purposes of employment.

New York State joined other states in asserting that states are economically benefited when these non-citizens are designated as deferred action and employment authorized. Persons who are employment authorized with work based social security numbers have taxes deducted from their salaries with each paycheck. The taxes deducted include state and local as well as federal income taxes, thereby adding to state and local budgets. Further, affording employment authorization allows individuals to utilize their skills and obtain work that maximizes their income thereby adding to each state’s economy. Studies of those with the current unchallenged DACA designation demonstrate the increased economic contributions that these non-citizens have made.   Additionally, the states asserted that state costs to support citizen and resident children would diminish in two ways. First, parents would be better able to economically support their children and the children would thereby not be economically eligible for social service benefits. Second, the states would not face foster care costs for citizen or resident children whose parents are deported.


An Amicus brief by local officials including the Mayor of New York City made similar arguments.   This brief stated that New York State would receive more than $85.5 million annually in additional tax revenues if the DACA and DAPA guidance memos were fully implemented, leading to an estimated $35 million in additional funds for New York City alone.  An Amicus brief by professional economists and scholars presented studies and analysis that demonstrated the economic benefit to states and localities, and additionally demonstrated that work authorization linked to deferred action would not have an adverse effect on native born or currently authorized immigrant workers.

The Mayors’ brief also complained that the nation wide injunction issued by the Texas district judge and affirmed by the Fifth Circuit caused serious detriment to localities. The Mayors’ brief asserted that the guidance would result in over $800 million in additional economic benefits to state and local governments and that the court injunction that prevented its implementation resulted in a daily loss of $100,000 in tax revenue for New York City alone. The localities complained that the nationwide injunction prevented any court from considering their considerable harms from the injunction, while giving credence to the alleged minimal harm to Texas of increased drivers’ license processing fees. Local governments in Texas representing twenty-six percent of the Texas population joined the Mayor of New York and others in this brief. The brief argued that the court should not allow Texas standing to seek a nation wide injunction that gave Texas the right to request the termination of federal policies in every locality in the country thereby disregarding the harms to thousands of localities. They also argued that the scope of the injunction was much too broad as it applied to more than the asserted harm since Texas only complained of administrative costs in Texas.

The New York and other states’ and Mayors’ briefs also argued that the guidance would improve public safety through greater interaction between law enforcement and immigrant communities by removing the fear that interaction with local police would lead to deportation.   This view was also detailed and supported by police chiefs in their Amicus brief.

Statue-of-Liberty-NewsThe state of Texas, however, asserted that it would be economically harmed by the guidance regarding DAPA because Texas’ costs in issuing drivers’ licenses would increase. Texas chose to subsidize the cost of drivers’ licenses by charging applicants less for licenses than the actual cost of processing and Texas does not allow “illegal” aliens to be granted drivers’ licenses. According to Texas, the federal designation of non-citizens as DAPA would harm the Texas economy because those individuals would thereby be “lawfully present” and as such eligible under Texas’ regulation to make applications for Texas’ drivers’ licenses, that would be then be processed at below administrative cost.  This assertion is the basis for the issues before the Supreme Court.

The first issue whether Texas has “standing,” i.e. the legal basis to even raise a complaint before a court. Under the constitution, courts must consider only cases or controversies. Courts do not address generalized political grievances about executive decisions. To have “standing” a party must have a harm that is concrete, particularized, imminent, traceable to the challenged action and redressable by a favorable ruling.

New York (and some other states), and the federal government asserted that any harm to Texas was self inflicted and not caused by the guidance. They also argued that the alleged harm was too speculative and indirect to support a finding of standing. The states’ brief noted that nothing in the guidance required Texas to subsidize the processing and issuance of drivers’ licenses, or directed states to do anything else. The brief detailed how various states have chosen a variety of different decisions with regard to the issuance of licenses to noncitizens.  The guidance from a federal secretary directs criteria to be used in exercising discretion by lower level federal officials. Removing that guidance would not redress anything about Texas drivers’ license processing. Additionally, the brief stated that Texas had not adequately demonstrated that there was even an adverse economic consequence to including those with DAPA as eligible for licenses. The Mayors’ brief also contended that the Texas did not have standing to seek a nationwide remedy since it only alleged a narrow harm to Texas.

If a majority of the Supreme Court decides that Texas does not have standing, then the case ends and the DAPA/ extended DACA guidance can go into effect. There then may be a concern about whether individual non-citizens will apply as the country confronts a presidential election in November, and therefore the possibility that a new administration could rescind or modify the guidance. However, states and localities like New York have plans in place to assist applicants if the federal government moves forward. They also have plans to prevent non- citizens falling prey to persons taking money based on false promises of obtaining an unavailable immigration status. If DAPA and expanded DACA are implemented, New York state and city and other similar states and localities have the capacity to reap the economic and public safety benefits of their residents coming out from the shadows and working with federal authorization.

If a majority of the Court decides that Texas has standing, then the additional issues raised in the case can be addressed by the Court. The Fifth Circuit upheld a preliminary injunction granted by a Texas based district court judge preventing the implementation of the guidance. One criterion for a preliminary injunction is whether the party requesting the injunction had a likelihood of success on the merits of the claims made. Texas argued it had likelihood of success on the merits of several legal claims.

Texas argued that through the guidance memo regarding DAPA the executive branch created a program that would deem four million unlawfully present aliens to be “lawfully present” and eligible for a host of benefits” in violation of immigration laws, and the “Take Care” clause of the Constitution, and without complying with the notice and comment requirement of the Administrative Procedure Act. The Supreme Court could decide that Texas has standing, but that it does not have likelihood of success on the merits of any of its claims and therefore the injunction could not stand. Alternatively, the court could decide that one or more claims have sufficient merit to support the injunction.

116px-LiberteExpositionUniverselleParis1878On the first issue, the federal government (supported by the briefs of New York State and City and other states and localities) argued that the executive authority to defer removal even for large groups of designated individuals was a lawful, long-standing, recognized component of prosecutorial discretion that had been exercised by numerous Republican and Democratic administrations in a variety of circumstances.  It further pointed out that individuals afforded deferred action were separately eligible to apply for employment authorization under an unchallenged long- standing federal regulation based on a federal statute that afforded the executive wide authority to designate which non citizens could obtain employment authorization.

Texas asserted that the executive unlawfully stepped on the authority of Congress by proposing to transform those designated DAPA into “lawfully present” non-citizens. The challenged guidance expressly stated that deferred action was an exercise of prosecutorial discretion that could be terminated in the agency’s discretion and that “deferred action does not confer any form of legal status in this country.” Texas pointed to a succeeding phrase that stated deferred action “simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.”   At oral argument the U.S. Solicitor General stated that the words “lawfully present” could be removed from the guidance and it would still have the same meaning and effect, i.e., that in the exercise of discretion the removal of certain low priority individuals would be deferred for a designated time period.

Texas also pointed to other government documents that stated that non-citizens with deferred action would be considered “lawfully present” for some federal benefits. Non-citizens with deferred action and in other categories are not eligible for most federal benefits, as they are not designated as “qualified aliens.” Further, those with current DACA are explicitly not considered as “lawfully present” to participate in the insurance exchanges established in the federal Affordable Care Act. Texas pointed to the ability of those designated DAPA to be “lawfully present” for social security eligibility. However, if DAPA is implemented, eligibility for participation in social security, now, would mean eligibility to pay FICA (social security) taxes, not to receive benefits.

FICA taxes are required to be deducted from each employee’s paycheck and attributed to the relevant social security number.    An employee pays about seven and a half percent of yearly income into the social security system. However, social security benefits are only paid to individuals who are at retirement age, or extensively disabled, and who in addition have paid FICA taxes for a significant time period, for most, the equivalent of approximately ten years of employment. FICA tax payment is required with each paycheck whether or not any individual is expected to be eventually eligible to receive social security benefits. At this point, those who may be eligible for DAPA are unlikely to be elderly or significantly disabled, and would not have the equivalent of tax payments to social security based in ten years of authorized employment.   They may never have to opportunity to lawfully work and pay FICA taxes for ten years as DAPA is designated for three years. Whether or not they will ever be able to receive social security benefits, those designated DAPA who obtain work authorization will have to pay a significant portion of their salaries into the social security system.  This is in addition to the state and local (and federal) income tax deductions that are required from each paycheck and form one of the bases of DAPA’s economic benefit to states and localities.

If a Supreme Court majority recognizes the guidance as a legitimate exercise of prosecutorial discretion, then Texas’ legal claims will likely fail. The federal government argued that review of the guidance was not allowable under the Administrative Procedure Act (APA) because it involved matters committed to agency discretion by law. It additionally argued that APA notice and comment requirements did not apply to statements of policy concerning how the agency will exercise its discretion. Further, it argued that the guidance was a lawful and responsible exercise of the Secretary of Homeland Security’s statutory authority to administer and enforce immigration laws supported by a long history of immigration law and enforcement policies. Additionally, the federal brief stated that Texas’ assertion that the guidance memo violated the Take Care Clause of the U.S. Constitution was based in a contention that it was incompatible with Congressional will and thereby was similar to the erroneous argument that the guidance exceeded the Secretary’s statutory authority. It further argued that the judicial branch of government did not have authority to examine whether the President has exercised power to see that laws are faithfully executed, as that is a political determination and not subject to judicial direction.

If the Supreme Court splits four to four on the standing issue or the additional issues discussed above, the Fifth Circuit’s decision stands and therefore the injunction precluding the implementation of the DAPA, expanded DACA, guidance memorandum continues.   New York State and City and other states and localities will thereby continue to suffer the harms imposed by the injunction and be deprived of the economic and public safety benefits of those with DAPA and expanded DACA coming out of the shadows and participating in the formal economy, and in the life of the city and state without fear.  (The briefs filed in the U.S. v. Texas case and the Fifth Circuit’s decision can be accessed here.)

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