By Britanny Vanderhoof, Policy Counsel, HIAS
On Monday April 18, 2016 the Supreme Court (SCOTUS) will hear arguments in the case of United States v. Texas. SCOTUS has asked the U.S. and the state of Texas to prepare arguments on four legal points.
The first issue is whether Texas has standing to challenge Deferred Action for Parental Accountability (DAPA) and Deferred Action for Childhood Arrivals (DACA). Basically, Texas must show that it has the right to challenge the DAPA/DACA policy by proving that it will be harmed if the policy is implemented. One way Texas is showing harm is that the state provides subsidized driver’s licenses. If DAPA/DACA is implemented, more people would be eligible for subsidized driver’s license which means the state would have to pay for more licenses. This creates a burden on Texas which gives Texas standing in court.
One policy consideration that comes from this issue is that if SCOTUS finds that Texas does have standing, would this allow other states to challenge other types of federal decisions and policies? Many federal policies including immigration enforcement decisions create some burden on the affected state. Could a finding of standing for Texas open the door for more litigation?
The second and third issues in the case fall under the Administrative Procedure Act (APA). This law dictates the scope and procedure for creating new federal regulations. The two issues the court will look at is whether DAPA/DACA is a “rule” under the APA that would require a “notice and comment” period. A “notice and comment” period requires the agency proposing a new rule to make the rule available to the public for a period of time so that they may provide feedback on the rule. SCOTUS must also decide whether the DAPA/DACA policy is “arbitrary and capricious.” The Court will decide if the Department of Homeland Security acted in a way that ignored relevant factors or acted outside its authority when it created the DAPA/DACA policy. The U.S. argues that DAPA/DACA falls under the Executive’s recognized authority to decide how and when to enforce the law and when someone should be prosecuted.
From a policy standpoint, these issues raise questions about the limits of Executive action. When is an action by an agency part of its discretionary powers and when does it become a rule that can be challenged? The outcome of these issues may have an impact on the types of policies agencies can implement without going through the formal rulemaking process. What is the limit on Executive power?
The final issue is whether the DAPA/DACA policy violates the “Take Care” clause of the Constitution. The “Take Care” clause requires the President to “take care that the laws be faithfully executed.” This part of the Constitution is rarely used and has not been enforced by SCOTUS before.
This issue raises interesting policy considerations. Even by raising the “Take Care” clause as an issue may inspire more litigation against the Executive Branch. This could be way for Presidential decisions to be challenged in court. This precedent is concerning in a time where Congressional action is stymied and Executive action may be the only changes to federal policies are possible. Having to fight a constant stream of litigation challenging a President’s decision would be costly and time consuming.
The outcome of U.S. v. Texas has the potential to define Executive authority in significant ways. The case could validate what many see as Presidential overreach or could challenge the idea of executive decision making and prosecutorial discretion. A finding favorable to Texas could also open the door to more litigation in the future, not just on immigration, but in all areas where federal agencies implement policy.