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05/26/2015

Stay Denied in Immigration Enforcement Discretion Case
Michael Ramsey

Josh Blackman has details on today's Fifth Circuit decision in Texas v. United States (2-1, opinion by Judge Jerry Smith).

On the constitutional issue, the majority says:

Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily—not to enforce the immigration laws as to a class of what he deems to be low-priority aliens.

If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, 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.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” 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. Regardless of whether the Secretary has the authority to offer those incentives for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.

That's consistent with my view of the case, which is basically that the President can decline to prosecute (or, in the immigration context, decline to remove) but as a constitutional matter that's simply a non-action that does not change anyone's status or rights.