Ending Judicial Truthiness on Immigration

When the Supreme Court considers what it hears this week in United States v. Texas – the Republican lawsuit challenging the Obama administration’s immigration initiatives – the justices should start by getting the basic facts right, which is something that both the administration’s political opponents and lower court judges have scrupulously failed to do.

While their attacks have been framed in a variety of ways, Obama’s critics essentially accuse the President of unlawfully imposing by decree precisely that which Congress has declined to authorize by statute: legalization of noncitizens who lack lawful immigration status. In reality, the administration’s efforts do no such thing.

With millions of noncitizens subject to deportation, immigration control has become a sprawling, complex, and controversial enterprise. But even as Congress has poured appropriations into enforcement, those resources still only permit enforcement action against a small fraction of the population of potentially deportable individuals.

Immigration officials unavoidably must, therefore, establish priorities and exercise discretion—either de facto or by design. Congress mostly has not sought to structure or micromanage those processes. Rather, the sweeping provisions of immigration law largely delegate those responsibilities to executive branch policymakers. As the scale of enforcement has grown, those supervisory responsibilities have only become more challenging.

To structure those processes in a manner that promotes rule-of-law values, including consistency, accountability, transparency, and nonarbitrariness, President Obama announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative in November 2014. Building upon efforts by previous administrations, the policy consists of two related components. The first refined the government’s enforcement priorities, which have long sought to channel scarce resources toward removal of noncitizens presenting the greatest risks to national security, public safety, and border security.

The second established eligibility criteria and processes for as many as four million noncitizens falling outside those priorities—of a total population of approximately eleven million potentially deportable noncitizens—to seek, on a case-by-case basis, “deferred action,” a mechanism used to implement immigration enforcement discretion since at least the 1970s.

Deferred action provides individuals with nonbinding, revocable notification that officials have deprioritized enforcement action against them—and by itself does nothing more. Under longstanding, entirely separate laws and regulations, these individuals may subsequently be deemed to have other collateral rights and benefits, including eligibility to apply for temporary work authorization.

But deferred action confers lawful immigration status upon precisely no one. Both the Supreme Court and Congress have long acknowledged the practice. As Justice Antonin Scalia explained in 1999, at each stage of the removal process “the Executive has discretion to abandon the endeavor” and has long implemented that discretion by granting deferred action “for humanitarian reasons or simply for its own convenience.”

Nevertheless, critics of these initiatives have bombarded public discourse with misinformation. Opponents accuse the President of instituting “executive amnesty,” implying that he seeks to grant the equivalent of green cards to millions of people. More strident critics go further. Senator Ted Cruz, for example, has characterized the initiatives as tantamount to “counterfeiting immigration documents.”

However, far from obtaining lawful status, deferred action recipients remain deportable. They receive neither a license to violate the immigration laws nor any immunity from removal. Rather, their presence is merely tolerated, relegating them to a tenuous state of immigration status purgatory. Once granted, deferred action may be revoked at any time for any reason. Indeed, a future President Trump or Cruz could eliminate the Obama administration’s initiatives altogether—as both have pledged to do.

Tellingly, neither legislative reform proponents nor individuals eligible for DAPA or its predecessor, Deferred Action for Childhood Arrivals (DACA), regard deferred action as equivalent to lawful status. Because of the risks of registering with the government, large numbers of DACA-eligible individuals have chosen not to apply at all. Unsuccessful applicants risk being placed in removal proceedings—a powerful deterrent against individuals with marginal applications applying in the first place.

Of course, it hardly surprises to see politicians twist facts beyond recognition. Almost a dozen years have passed since Karl Rove reportedly mocked the “reality-based community” for persisting in its “judicious study of discernible reality,” in the face of politicians intent upon “creat[ing their] own reality.” Today, what Stephen Colbert termed truthiness—a faint semblance of actual truth, in which “facts matter not at all” and “perception is everything”—has become increasingly normalized in political discourse.

To see federal judges fashion their own forms of truthiness, however, is more surprising and troubling. In the immigration case, judicial truthiness has enabled the devolution of the litigation process into partisan politics by other means. The Republican plaintiffs self-consciously filed their lawsuit in Brownsville, Texas to steer its assignment to Judge Andrew S. Hanen—an outspoken critic of the Obama administration’s immigration policies who, at one point, even accused policymakers of hatching a “criminal conspiracy” with “evil individuals” to violate the immigration laws.

When Judge Hanen enjoined DAPA last spring, informed observers were not surprised. Notwithstanding the realities about deferred action, his 123-page ruling is littered with provocative assertions about the ills of unauthorized migration and claims that DACA and DAPA “award legal status” to millions of “illegal aliens”—thereby mirroring and reinforcing the same false claims circulating in political discourse.

On appeal, the U.S. Court of Appeals for the Fifth Circuit rearticulated Judge Hanen’s clumsy assertions in more refined terms carrying the same implications. Judge Jerry Smith went out of his way to describe DACA and DAPA as affirmatively granting “lawful presence,” which he characterizes as a coherent, unitary legal classification providing a package of benefits in a manner that approximates lawful immigration status.

As a legal concept, however, “lawful presence” does not exist in the manner that Judge Smith maintains. The picture he paints—in which the administration flipped a switch and doled out an intertwined package of automatic entitlements to unauthorized migrants—echoes the political rhetoric used to attack the President, but entirely mischaracterizes the nature of deferred action.

The plaintiffs now aggressively urge the Supreme Court to embrace this judicially-invented conception of “lawful presence.” Notably, these arguments were nowhere to be found when they originally presented their claims to Judge Hanen. While the plaintiffs then argued that immigration officials lacked discretion altogether to forbear from pursuing removal of DAPA-eligible individuals, they now argue primarily that by granting “lawful presence,” deferred action impermissibly seeks to “transform otherwise unlawful conduct into lawful conduct.”

In the reality-based community, the factual and legal basis for these claims is rather weak. The case illustrates a broader peril in politically charged cases, in which contemporary norms of political discourse can overwhelm and displace traditional norms of judicial fact-finding and reasoned decision-making. Especially when the chasms between rhetoric and reality are as wide as they are here, the judiciary’s credibility and independence suffer when judges appear to embark on politicized quests for truthiness drawing so directly from partisan politics.

In a 2014 speech to the American Bar Association, Chief Justice John Roberts emphasized the importance of those traditional norms of adjudication in promoting public confidence in government in an era of deep partisan division. By rejecting the truthiness that has infected this case, the Supreme Court can send a strong message affirming that idea, signaling that litigation should not become merely another arena for partisan disputes and modes of contention better left in the political process.

Anil Kalhan

Anil Kalhan is an Associate Professor of Law at Drexel University Thomas R. Kline School of Law.