John Yoo: Judge Hanen’s Flawed Ruling

By John Yoo

Opponents of President Obama’s immigration policy may want to temper their praise of federal judge Andrew Hanen’s decision this week, which blocked the administration’s unilateral policy of refusing to pursue the deportation of millions of illegal aliens. Unfortunately, I think it is likely that an appeals court will reverse Judge Hanen’s decision because it tried — too cleverly — to avoid the fundamental issue of the president’s duty to enforce the law by relying instead on a technical aspect of the law governing administrative agencies. But when the case returns to the trial court, the judge will have to face the critical conflict between the Obama policy and the executive’s constitutional duty to “take Care that the Laws be faithfully executed.”

Judge Hanen, who sits in Brownsville, Texas, issued a 123-page opinion explaining why Texas and 25 other states had the right to challenge the Department of Homeland Security. That part of the decision, which showed how the states were harmed by the federal policy, and so had “standing” to sue in federal court, is likely to be upheld on appeal. As I’ve argued before, the same logic that allowed Massachusetts to sue the EPA for failing to regulate greenhouse gases — on the speculative possibility that gases would lead to global warming, which would lead to rising seas, which would reduce the land mass of the state — would more powerfully support states that had to provide services to illegal aliens allowed to remain in the United States by the Obama administration. Judge Hanen pointed out that Texas would suffer a sufficient harm to sue because it would have to bear expenses to provide illegal aliens with driver’s licenses. Hanen’s opinion straightforwardly rebuts the weak claims of Obama supporters who believed that states had no right to sue in court.

But the second part of the opinion, which found the states likely to prevail on the merits, is likely to be reversed. Judge Hanen, I’m afraid, here decided the case on the wrong ground. Here, he found that the Obama administration had violated the Administrative Procedure Act (APA) for failing to give the public notice and an opportunity to comment on its new policy on enforcement of the immigration laws. The court did not reach the constitutional issue: whether a President can refuse to enforce federal law, not because it violates the higher law of the Constitution, but because he disagrees with Congress’s policy choices.

Unfortunately, I think that Judge Hanen may well be reversed on appeal. The conclusion that the Obama administration should have complied with the APA is doubtful, in my view. It did not issue a new regulation, which would trigger the APA process of notice and comment rulemaking. If the Justice Department, for example, were to follow a policy that it will not prosecute violators of federal criminal law who did not cause any physical harm or significant financial damage in the course of their crimes, the APA should not apply. Such decisions fall under the scope of prosecutorial discretion that the Supreme Court, in Heckler v. Chaney (1985), recognized as not subject to judicial review. The executive-branch agencies must follow the APA when they issue regulations on pollution, for example, or workplace standards.

But they do not generally have to follow administrative rulemaking procedures when they refrain from using their law-enforcement powers. But I can understand why Judge Hanen took this course, because he did not want to reach a difficult constitutional issue on which we have almost no Supreme Court precedent. Nevertheless, he — and the federal courts — will have to. If the appeals courts reverse and find that the APA does not cover cases of prosecutorial discretion, as I think it will, then the remaining ground will still be the claim that President Obama has violated Article II of the Constitution by failing to execute the laws validly passed by Congress. This is the fundamental issue and it is, in the end, the reason to oppose President Obama’s unilateral immigration policy. Even though I would like to see immigration reform that significantly expands the number of aliens allowed to remain in the United States (and changes the grounds on which they are admitted), I cannot agree with the way President Obama set the policy.

As long interpreted, the Constitution gives the immigration power to Congress and it does not allow the president to pick and choose which laws he likes for enforcement. The only time that a president can categorically refuse to enforce a law in such a broad class of cases (here, perhaps as many of 4.5 million out of the estimated 12 million illegal aliens in the U.S.) is when the law itself violates the Constitution. Otherwise, the president can choose to refrain only in a case-by-case use of prosecutorial discretion that sets priorities based on limited federal resources. Here, as Judge Hanen’s opinion made clear, the past Obama immigration order on the so-called DREAMers granted relief from deportation in close to 100 percent of the cases. The Constitution prevents the president from canceling a law simply because his views lost out in the legislative process; the Framers included the Take Care clause precisely to prevent such a result. Judge Hanen’s opinion, while a good start on standing, still requires the federal courts to stand up for this fundamental constitutional principle.

— John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare.