June 2, 2015, Washington:  This week’s report and immigration news update from the Federation for American Immigration Reform

  • Citing State Benefits for Illegal Aliens, Appeals Court Upholds Injunction on Executive AmnestyAmerica the Free
  • Does Representation for Illegal Aliens Violate the Constitution?
  • Nebraska Makes Aliens with Deferred Action Eligible for Driver’s Licenses

Citing State Benefits for Illegal Aliens, Appeals Court Upholds Injunction on Executive Amnesty

Last Tuesday, the Fifth Circuit Court of Appeals denied the Obama Administration’s request to lift the injunction on part of the President’s November 2014 executive amnesty. This ruling leaves in place District Court Judge Andrew Hanen’s injunction on Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) until the courts decide the merits of the injunction itself. (See FAIR Legislative Update, Apr. 14, 2015) “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction,” the appellate court held. (5th Circuit Order Denying Stay, May 26, 2015 at 2)

Importantly, as part of its ruling, the Fifth Circuit agreed with the District Court that that the plaintiff-States have legal standing to sue — a prerequisite for bringing a lawsuit. Specifically, the court determined that Texas has standing because issuing driver’s licenses to DAPA beneficiaries would cost the state at least $130.89 per license. (Id. at 9-10) The court also rejected the government’s argument that Texas could simply increase the amount it charges for driver’s licenses, holding that being forced to choose between incurring costs (subsidizing licenses for DAPA) and changing its law (increasing the charge for licenses) is itself an injury. (Id. at 10)

The Fifth Circuit also agreed with the District Court that the states’ claims against the federal government are subject to judicial review. In particular, the Fifth Circuit dismissed the Department of Justice’s (DOJ) claim that DAPA and the expanded DACA program are unreviewable by the courts because the Department of Homeland Security (DHS) has complete discretion in bringing immigration enforcement actions. Instead, the court found that “DAPA’s version of deferred action…is more than nonenforcement: It is the affirmative act of conferring ‘lawful presence’ on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.” (Id. at 24) The court continued, “Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification.” (Id. at 24-25)

Third, the Fifth Circuit found that the District Court had not unreasonably determined that DAPA, by its nature, is a rule and therefore subject to the Administrative Procedures Act (APA) notice and comment requirement. The Fifth Circuit reasoned that, more than simply refusing to deport an alien, DAPA changes “substantive rights” by giving lawful presence to approximately 500,000 illegal aliens in Texas and “forces the state to choose between spending millions of dollars to subsidize driver’s licenses and changing its law.” (Id. at 37)

Finally, the court rejected DOJ’s argument of limiting the injunction to just Texas or the 26 plaintiff-States. The court noted that “partial implementation of DAPA would undermine the constitutional imperative of ‘a uniform Rule of Naturalization’ and Congress’s instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly.'” (Id. at 42) The court also pointed out that “there is a substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states.” (Id.)

FAIR and its legal affiliate the Immigration Reform Law Institute (IRLI) applauded the Fifth Circuit’s decision. “The majority ruling affirms FAIR’s long-held contention that the Obama administration’s actions represent an abdication of the federal government’s responsibility to faithfully carry out our nation’s immigration laws and that those policies directly harm state and local governments,” said Dan Stein, FAIR’s president. (FAIR Press Release, May 26, 2015) IRLI Executive Director Dale Wilcox said, “Congress never intended for the President to wipe away our carefully-crafted immigration laws by declaring mass amnesty and then claim he could never be challenged in court. The attempts of the President’s attorneys to misconstrue court precedent cannot prevail in a system built on the rule of law and thankfully that was confirmed yesterday by the Fifth Circuit.” (IRLI Press Release, May 27, 2015)

Similarly, members of Congress praised the outcome. “Today’s decision from the federal appeals court is another victory for the Constitution and the American people. President Obama’s executive overreach on immigration poses a clear and present danger to our Constitution and I am pleased that the President’s actions continue to be halted so that the states’ lawsuit can continue to move forward,” said House Judiciary Chairman Bob Goodlatte (R-VA). (Goodlatte Press Release, May 26, 2015) Representative Lamar Smith (R-TX) added, “I am encouraged by today’s decision to uphold a Texas judge’s injunction preventing the Obama administration from forging ahead with unilateral amnesty actions. I will continue to be a vocal support of the Texas-led, 26-state lawsuit and our nation’s rule of law.” (Smith Press Release, May 26, 2015)

Not surprisingly, the Obama Administration strongly criticized the court’s decision. A White House spokesman accused the judges of choosing “to misinterpret the facts and the law in denying the government’s request for a stay.” (See The Hill, May 26, 2015) Spokeswoman Brandi Hoffine added, “The president’s actions…are squarely within the bounds of his authority, and they are the right thing to do for the country.” (Id.) Despite insisting that President Obama’s executive amnesty is legal, the DOJ is not appealing to the Supreme Court, meaning the injunction remains in effect for now. (USA Today, May 27, 2015) Instead, the DOJ will wait until a July hearing before the Fifth Circuit on the merits of the injunction to defend the executive action. That hearing is scheduled to begin on July 10. (The Hill, May 28, 2015)

Stay tuned to FAIR and IRLI as details emerge…

Does Representation for Illegal Aliens Violate the Constitution?

Last Tuesday, the Supreme Court agreed to hear a Texas lawsuit, Evenwel v. Abbott, which claims the state’s practice of apportioning voting power based on the general population rather than the number of eligible voters is unconstitutional. (New York Times, May 26, 2015) In a landmark case in 1964, Reynolds v. Sims, the Supreme Court held that, according to the equal protection clause of the 14th Amendment, the voting districts of state legislatures had to be approximately equal in population based on the principle of “one person, one vote.” (Reynolds v. Sims, 377 U.S. 533, 1964) However, over fifty years later, the Supreme Court has never determined which “persons” should count — eligible voters only, or all residents. (Washington Post, May 26, 2015)

Because the Supreme Court has left the question of who is a “person” under the “one person, one vote” standard open, legislatures may decide for themselves how to count people when dividing up voting districts. Currently, most state legislatures have chosen to apportion legislative seats based simply on the general population, including illegal aliens, other non-citizens, and non-voting felons. (New York Post, May 27, 2015) One advantage for states in doing so is that they can simply use the Census’s population count. Congress has also chosen this method for determining seats in the House of Representatives. (See Census.gov) However, this means that, while the number of people in each district may be equal, the number of eligible voters may be quite disproportionate, for one district may have many more non-citizens than another. As a result, the vote of a citizen living in a district with a large number of illegal aliens will in practice have much more electoral power than the vote of a citizen in a district with very few illegal aliens. (See FAIR Report, Sept. 2008)

The issue is now coming before the Supreme Court because two voters in Texas, Sue Evenwel and Edward Pfenniger, have sued their state for using a count of the general population rather than a count of eligible voters to determine state senate districts. (Evenwel Complaint, Apr. 21, 2014) In 2013, the state of Texas passed a law using 2010 Census data to determine new state Senate districts. (Id.) According to the law, an equal number of all people based on the updated Census data would live in each state senate district. (Id.) However, the plaintiffs, Evenwel and Pfenniger, claim that they live in a district with substantially fewer numbers of non-citizens than other districts, and as a result, their votes for state senate are diluted in comparison to the votes of citizens in other districts. (Id.) Therefore, they claim, even though the total population of each district is equal under Texas’s law, it violates the “one person, one vote” principle created by Reynolds v. Sims. (Id.) That case, they explain, held that “weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside,” is a violation of the equal protection clause of the 14th Amendment. (Id.)

While the Supreme Court has never ruled at all on the plaintiffs’ theory — that the “one person, one vote” principle requires states to count by eligible voter rather than by general population — all the lower courts that have heard the issue have actively rejected it. (Washington Post, May 26, 2015) In November, the 5th Circuit Court of Appeals dismissed Evenwel v. Abbott, holding that Supreme Court precedent allows the states to decide for themselves what method of apportionment to use, as long as the “metric” employed is not intended to discriminate against certain groups. (Fifth Circuit Opinion, Nov. 5, 2014; Washington Post, May 26, 2015) But Evenwel v. Abbott was only the latest, all other circuits that have heard similar challenges have come out the same way, and the Supreme Court itself has refused to hear three similar challenges at least three times in the past 25 years. (Id.; New York Times, May 26, 2015) Given the lack of a Circuit spilt, the Supreme Court’s decision to take it up now was seen as surprising to a number of election law experts. (Washington Post, May 26, 2015) Yet, perhaps instead of surprising this case is overdue. As New York University law professor Richard Pildes remarked, it is also unusual for a constitutional standard to be left up to the states the way the “one person, one vote” principle has been. (Washington Post, May 26, 2015)

If the Supreme Court ultimately decides that it is unconstitutional to count non-citizens when apportioning districts by population, the political impact could be tremendous. The case itself only applies to the state legislatures, but the principle applied may well ultimately apply to Congress as well. As University of California Irvine law professor Richard Hasen says, it would not be logical to apply the principle to state legislatures but not Congress. (New York Times, May 26, 2015; Slate, May 26, 2015) In turn, some political power could shift away from cities to rural areas, in both federal and state elections. (New York Post, May 27, 2015; Washington Post, May 26, 2015; LA Times, May 26, 2015) Through the House of Representatives and the Electoral College, it would also reduce the influence of states like California with large populations of illegal aliens.

Some politicians and political consultants have been wary about the potential implications of the Supreme Court ruling in favor of the plaintiffs in this case. For instance, California Assemblyman Luis Alejo, Chairman of the Latino Caucus, decried the idea that only citizens should be represented in the legislature. (LA Times, May 26, 2015) “Noncitizen immigrants” he said, “deserve” to have representatives “champion their concerns too.” (Id.)

The Supreme Court will schedule the case for a hearing after the new term begins in October. (Washington Post, May 26, 2015)

Nebraska Makes Aliens with Deferred Action Eligible for Driver’s Licenses

Last week, the Nebraska legislature implemented a law that makes deferred action aliens eligible for driver’s licenses by overriding the Governor’s veto of Legislative Bill (“L.B.”) 623. (Fox News, May 28, 2015) Governor Pete Ricketts vetoed L.B. 623 after the unicameral legislature passed the bill last week with a 34-9 vote. (Id.)Then, on Thursday, the legislature voted 34-10 in favor of overriding the Governor’s veto. (Id.)

Previously, Nebraska was the only state in the country to block driver’s licenses from illegal alien beneficiaries of President Obama’s Deferred Action for Childhood Arrivals (“DACA”) program. (Nebraska Radio Network, May 28, 2105; Omaha.com, May 29, 2015) Nebraska law prohibited any illegal alien with deferred action, including DACA recipients, from receiving state-issued identification. (L.B. 623) Deferred action is a temporary reprieve from removal proceedings, granted by the Department of Homeland Security (“DHS”) and may be terminated by DHS at any time pursuant to the agency’s discretion. (Napolitano Memorandum, Jun. 15, 2012) L.B. 623 removes this restriction and was crafted broadly to include other beneficiaries of President Obama’s executive amnesty, including the president’s newly created but not-yet implemented Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program. (Id.)

In the governor’s veto message, the governor reasoned that L.B. 623 is “wrong on principle” and gives licenses to a much broader group of illegal aliens than its supporters claimed. (Fox News, May 28, 2015) “Given that over one-half of the states are suing the United States government challenging the overreach of the President’s proposed executive action, the enactment of L.B. 623 at this time is an expansive and unwarranted grant of an important state identification document to an overly broad group of illegal immigrants,” Governor Ricketts wrote. (1011 Now, May 28, 2015)

Illegal aliens with deferred action may get driver’s licenses immediately because L.B. 623 included an emergency clause that puts the measure into effect concurrently with enactment. (L.B. 623)