Tag Archive for: Chevron

Cyrus Mehta

SEC v. Jarkesy and Loper Bright v. Raimondo: How the Supreme Court’s Dismantling of the Administrative State Impacts Immigration Law

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By Cyrus D. Mehta and Kaitlyn Box*

The conservative Supreme Court majority recently issued two decisions that will have a major impact on the administrative state by transferring power from administrative agencies to the courts. We discuss both these cases and their impact on immigration law.

SEC v. Jarkesy

On June 27, 2024 the Supreme Court issued its decision in Securities and Exchange Commission v. Jarkesy. As discussed in our previous blog, Jarkesy involved an investment advisor who was charged with violations of securities law and challenged the SEC’s enforcement action on the grounds that he was deprived of his constitutional right to a jury trial, that “Congress unconstitutionally delegated legislative power to the SEC by failing to provide it with an intelligible principle by which to exercise the delegated power”, and that restrictions on the removal of Administrative Law Judges (ALJs) violate Article II. It was feared that the outcome of Jarkesy could significantly impact the immigration court system, as the authority of Immigration Judges (IJs) could be challenged using the same arguments advanced by Jarkesy.

The Supreme Court ultimately held that defendants are entitled to jury trials when the SEC seeks civil penalties against them for securities fraud. However, this holding appears unlikely to impede the ability of IJs to hear cases. In its opinion, the Supreme Court addressed concerns that its holding could reach beyond SEC administrative enforcement proceedings that replicate common law fraud. Citing Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320 (1909), a case that involved the imposi­tion of a monetary penalty on a steamship company accused of transporting immigrants afflicted with “loathsome or dangerous contagious diseases” to the United States, the Supreme Court clarified that Congress has the power to regulate immigration and even impose monetary fines for violations without triggering the right to a jury trial under the plenary power doctrine. Justice Robert’s majority opinion cited this case as on of the category of cases concerning public rights, including immigration law, which do not include a jury trial.  This discussion seems to exclude most, if not all, immigration-related matters from the Supreme Court’s holding in Jarkesy. On the other hand, one provision resembling common law fraud is the document fraud provision at INA 274C. An individual who is subject to an INA 274C hearing before an ALJ may wish to try to invoke Jarkesy to invalidate the hearing because it is a violation of their Seventh Amendment right to a jury trial. Similarly, if there is an discrimination hearing under INA 274B based on an employee’s complaint, an employer may seek to invoke its right to a jury trial.

Since the Supreme Court did not review an appointments clause violation involving an ALJ, Jarkesy may not have impacted the Space X and Walmart lawsuits that have thus far successfully invalidate proceedings before the Office of the Chief Administrative Hearing Officer, which handles cases involving unfair employment practices, document fraud and noncompliance record keeping requirements. These will be dealt with at a later time in another case. However, the Supreme Court’s holding in Jarkesy could impact immigration lawyers who have an EB-5 practice, as they can be subjected to SEC enforcement actions. As discussed in a prior blog, the SEC has initiated enforcement actions against immigration lawyers who it claimed had offered investments without registering as a broker or received commissions from their clients’ investments. The SEC often imposes monetary sanctions on immigration lawyers found to have committed a securities violation. Thus, Jarkesy could provide immigration lawyers accused of securities fraud a means of challenging the enforcement proceedings brought against them by the SEC on the grounds that they are entitled to a jury trial.

Although Jarkesy only struck down as unconstitutional the lack of a civil jury trial for civil penalties under securities law, Justice Sotomayor in her dissent identified at least two dozen agencies that impose civil penalties in administrative proceedings including CFPB, CFTC, EPA, FCC, FDA, FMC, FMSHRC, FRA, DOJ, DOT, FERC, HHS, HUD, MSPB, OSHA, Treasury, USDA, and USPS.

Loper Bright Enterprises v. Raimondo

Another recent Supreme Court decision may, on the other hand, have wide reaching impacts on immigration. In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine.  Under this doctrine, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but made clear that prior cases decided under the Chevron framework are not automatically overruled. It is likely that courts will revert to Skidmore deference, the lower-level framework that preceded Chevron, which asserts that the level of deference an agency’s decision merits depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U. S. 134 (1944).

In a previous blog, we discussed the possible impacts of the elimination of Chevron deference, including the idea that it may open the door for challenges to a number of unfavorable immigration policies. For example, 20 CFR 656, which requires employers to place outdated print advertisements in Sunday newspapers as part of the labor certification recruitment process could now be vulnerable to challenges. INA §212(a)(5) states only that a noncitizen is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient [U.S.] workers who are able, willing, qualified…and available at the time of application”, and imposes no requirement on employers to conduct recruitment to establish a lack of U.S. workers. Post Chevron deference, courts may be more reluctant to defer to DOL’s interpretation of INA § 212(a)(5) as set forth in 20 CFR 656, which requires compliance with onerous recruitment steps including the placement of print ads. Moreover, the Supreme Court also issued Corner Post v. Board of Governors of the Federal Reserve System further widening the window to challenge regulations beyond the 6-year statute of limitations until the plaintiff is injured b final agency action.

USCIS’ “final merits determination”, the second component of a two-part test for determining whether an applicant has satisfied the criteria for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions may now be more ripe for legal challenges, as well. This requirement arose from USCIS’ interpretation of dicta referencing a “final merits determination” in the Ninth Circuit’s opinion in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). However, the Ninth Circuit’s holding in Kazarian does not actually impose a final merits determination, nor does this requirement appear anywhere in the relevant regulatory criteria. It may now be possible to attack unfavorable interpretations such as the  BIA’s restrictive definition of “particular social group” under Matter of M-E-V-G , or the BIA’s narrow interpretation of INA §203(h)(3) under Matter of Wang, which precludes many derivative beneficiaries of visa petitions who did not get protection under the Child Status Protection Act (CSPA) from retaining their parents’ priority dates. The Supreme Court affirmed Matter of Wang purely under Chevron deference in Scialabba v. Osorio.

On the other hand, the future of other, beneficial immigration policies is rendered uncertain without Chevron deference. F-1 OPT is an exercise of DHS’ discretion and not explicitly authorized by statute. F-1 OPT has already been challenged, and was upheld by the First Circuit in 2022 in WashTech v. U.S. under Chevron deference. Deferred Action for Childhood Arrivals (DACA), a discretionary benefit that has been the subject of numerous legal challenges, could also be vulnerable without Chevron. Even if Chevron no longer helps, there is a statutory basis for the USCIS to issue work authorization to noncitizens under INA § 274A(h)(3) and to set time and other conditions for nonimmigrants under INA § 214(a)(1).

The demise of Chevron also brings about the fall of Brand X. As discussed in our prior blog, the Supreme Court in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) held that an agency’s interpretation of an ambiguous statute may still be afforded deference even if a circuit court has interpreted the statute in a conflicting way. Brand X has been a double edged sword – although allowed agencies to interpret statutes in a way that was detrimental to immigration, it also allowed for the possibility of creative beneficial interpretations notwithstanding contradictory circuit court precedent. Brand X could have been harnessed to allow derivative family members to be counted together with principal applicants in the employment-based (EB) and family based (FB) visa preference categories under INA § 203(d), as the plain text of §203(d) does not require separate counting of derivatives. Although Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021) held that derivative family members must be counted separately in the EB-5 context, Brand X could have allowed an immigrant-friendly presidential administration to issue a policy memorandum overruling the case everywhere else.

Brand X has  also been employed to the detriment of immigrants. In his concurrence in Loper Bright v. Raimondo, Justice Gorsuch pointed to De Niz Robles v. Lynch, 803 F. 3d 1165 (CA10 2015), in which the BIA had invoked Chevron to “overrule a judicial precedent on which many immigrants had relied” in the 10th Circuit. That precedent was Padilla–Caldera v. Gonzales, 426 F. 3d 1294 (CA10 2005), which held that a noncitizen subject to the permanent bar could nonetheless adjust pursuant to INA § 245(i). According to Justice Gorsuch, who clearly dislikes Brand X:

“The agency then sought to apply its new interpretation retroactively to punish those immigrants—including Alfonzo De Niz Robles, who had relied on that judicial precedent as authority to remain in this country with his U. S. wife and four children…Our court ruled that this retrospective application of the BIA’s new interpretation of the law violated Mr. De Niz Robles’s due process rights…But as a lower court, we could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different ‘reasonable’ one and in that way deny relief to countless future immigrants.”

Its problematic aspects aside, Brand X was a tool for reversing unfavorable circuit court decisions, but has now fallen along with Chevron. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit’s decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant’s literal “last arrival” even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock). Also  in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit’s previous decision in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6. With the fall of Chevron, Arrabally might also be vulnerable although it remains to be seen whether a state or organization, which tries to challenge Arrabally  and other immigration policies may get standing to sue. In United States v.  Texas, the Supreme Court held that Texas and Louisiana had no standing to challenge the Biden administration’s enforcement priorities. Writing for the majority, Justice Kavanaugh said: “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.” In the face of United States v. Texas, it could be harder for states to argue that they have standing to challenge Arrabally or other policies.

While many are fearing that the undoing of Chevron will unleash an environmental, consumer, food and drug safety free for all, AILA is viewing the decision in a more positive light. AILA’s president Kelly Stump responded to Loper Bright as follows:

“The Loper Bright and Relentless cases had nothing to do with immigration law and policy, but SCOTUS overturning the longstanding Chevron doctrine will have a significant impact on many immigration adjudications. This now means that an agency’s interpretation of the INA doesn’t automatically prevail, which could level the playing field for immigrants and their families and employers. In removal cases, those seeking review of immigration judges’ or Board of Immigration Appeals decisions should now have more opportunity to do so. Employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker may also benefit. We note possible negative consequences as well, as the decision has severely handicapped the executive branch’s power to modernize our immigration system through policy updates or regulations. Valuable immigration benefits created by regulations may be threatened if not clearly based on statutory language. With this ruling, SCOTUS is punting the rule making process back to Congress. We hope Congress takes the initiative to come together in a bipartisan fashion to legislate sensible solutions that make our immigration system reflective of our modern-day realities.”

Notwithstanding Stump’s upbeat view, not everybody will benefit from the fall of Chevron. The most vulnerable being DACA recipients whose cases is being heard at the Fifth Circuit Court of Appeals, and Stump too acknowledges that “valuable immigration benefits created by regulations may be threatened if not clearly based in statutory language. “ If the Fifth Circuit and then the Supreme Court find DACA unlawful, Congress will need to step in to save DACA recipients. This remains wishful thinking as Congress has never been able to pass meaningful immigration reform in recent times. Chevron provided the bulwark for an immigrant friendly administration to pass meaningful immigration reform through executive action  thus providing ameliorative relief to hundreds of thousands of nonimmigrants. Some programs involving parole have a statutory basis under INA 212(d)(5) and will continue but other programs without explicit statutory language may be susceptible to challenge.  Without Chevron and Congress stepping up, the rug has been pulled under the feet of vulnerable noncitizens.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

THEY STILL HAVE THEIR DREAM: LAWSUIT AGAINST DREAMERS WILL GO NOWHERE

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By Gary Endelman and Cyrus D. Mehta

“The arc of the moral universe is long but it bends towards justice.” Dr. Martin Luther King
As if the non-recognition by the governors of Arizona, Nebraska, Texas and Mississippi of Obama’s Consideration of Deferred Action for Childhood Arrivals (DACA) program was not enough, a lawsuit filed by disgruntled ICE agents further reveals the misguided hate against a most vulnerable and sympathetic immigrant population in the US – young  people who entered the US before they turned 16, and who are not in a lawful status through no fault of their own.

The lawsuit, Crane v. Napolitano, has been filed by 10 ICE agents in a federal court in Texas who are being represented by Kris Kobach – the architect of the anti-immigrant state laws of Arizona and Alabama. It is being bank rolled by NumbersUSA, an anti-immigrant organization, which has been called a hate group. Even the head of the AFL-CIO has slammed the plaintiffs as not representing legitimate union grievances (as 9 out of the 10 plaintiffs belong to the ICE Union) but as “working with some of the most anti-immigrant forces in the country, forces that have long sowed division and destruction.”

The lawsuit alleges that the recent prosecutorial discretion policies enunciated in the Memo by ICE Director John Morton  and DACA command ICE officers to violate federal law. In essence, ICE officers, according to plaintiffs,  are required to remove non-citizens who are not here legally while DACA prohibits an officer from doing just that, which among other things, requires the individual to have entered the US under the age of 16;  been continuously residing in the US from June 15, 2007 until June 15, 2012, and was present on June 15, 2012;  is currently in school, has graduated from high school or obtained a GED or has been honorably discharged from the Armed Forces or the Coast Guard;  and is not above the age of 30. Also, the qualified individual should not have been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, and does not otherwise pose a threat to national security or public safety.

The lawsuit invokes provisions from the 1996 Immigration Act. The complaint alleges as follows:  “8 U.S.C. § 1225(a)(1) [INA § 235(a)(1)] requires that “an alien present in the United States who has not been admitted…shall be deemed for purposes of this chapter an applicant for admission.” This designation triggers 8 U.S.C. § 1225(a)(3) [INA § 235(a)(3)] which requires that all applicants for admission “shall be inspected by immigration officers.” This in turn triggers 8 U.S.C. § 1225(b)(2)(A)  [INA § 235(b)(2)(A)] which mandates that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” The proceedings under 8 U.S.C. § 1229a [INA § 240] are removal proceedings in the United States immigration courts.”

Deferred action is neither recent nor radical. Widows of US citizens have been granted this benefit. Battered immigrants  have also known its sheltering arms.  Never has the size of a vulnerable population been a valid reason to say no. Knowing this, the extension of such relief to DACA applicants is less a leap into the unknown justified by some wild, lawless ideology than a sober reaffirmation of an existing tool for remediation in prior emergencies. Moreover, many EWIs are also eligible for adjustment of status under special provisions of the law, but they are not routinely detained under INA § 235(b)(2)(A).  While they may be entitled to admission beyond a clear doubt, such a determination is not been made upon the mere filing of the adjustment application. Moreover, this argument is clearly not applicable to individuals who enter the US on a valid visa and overstay, which is the case with many DACA applicants.

Also, Kobach’s lawsuit conveniently omits to mention INA § 103(a)(1), which charges the DHS Secretary with the administration and enforcement of the Act, which in turn implies that the DHS can decide when to and when not to remove an alien. He also fails to mention INA 274A(h)(3)(B), which excludes from the definition of “unauthorized alien” any alien “authorized to be so employed . . . by the Attorney General.” After all, 8 CFR 274a.12(c)(14),  which authorizes the grant of employment authorization to one who has been granted deferred action, has been around for several decades. The only new thing about DACA is that the guidance memorandum set forth criteria for the grant of deferred action, and work authorization under 8 CFR 274a.12(c)(14).Congress too has recognized “deferred action” in § 202(c)(2)(B)(viii) of the REAL ID Act as a status,  which can allow an alien to receive a driver’s license.  This stands in marked contrast to the stated refusal of the Republican gubernatorial quartet noted supra to allow issuance of state driver’s licenses. Texas Governor Perry apparently does not realize that current Texas law already allows deferred action beneficiaries who have an employment authorization document to get a one-year Texas license.

There is a direct conflict between these Governors and the provisions of the Real ID act that, as of January 1, 2013, will sanction issuance of state driver’s license to deferred action grantees, This has been brought out vividly in Nightmare in Arizona: Governor Brewer’s Nonsensical And Mean-Spirited Executive Order Against Dreamers, and is a classic example of conflict pre-emption that is constitutionally impermissible under Arizona v. United States, 132 S. Ct. 2492, 183  L.Ed.2d  351 (2012). Whatever state executives may think, when confronted with the expressed intent of Congress in the Real ID Act, their opposition to deferred action having state driver’s licenses must give way. State law cannot “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz,  312 U.S. 52, 67 (1941). We suggest that the enemies of Dream Act relief tread softly and with great care. Gary Endelman & Cynthia Lange, The Perils of Preemption: Immigration and the Federalist Paradox, 13 Bender’s Immigr. Bull. 1217 (Oct. 1, 2008).

We refer our readers to the excellent Immigration Impact blog on why Kobach and the plaintiffs will likely lose. One compelling argument that the blog makes is that the court will dismiss for lack of jurisdiction since a federal case cannot be made out of a difference of opinion between government employees and their superiors. The blog’s author Ben Winograd draws this apt analogy: “ICE agents hauling the head of the Department of Homeland Security (DHS) into court is like a law clerk suing a judge for writing a decision with which she disagrees—or Kobach’s own subordinates in Kansas seeking an injunction requiring him to perform his actual job as Kansas Secretary of State. It’s just not how the legal system works.”

We propose further suggestions why the law suit may have no merit. We now revive the argument that we made in The Tyranny of Priority Dates that the courts will most likely give deference to the administration’s interpretation of INA provisions in the event that it grants benefits, such as work authorization, through executive action. Indeed, in the recent past, another restrictionist group filed a similar law suit against an administrative measure, which failed. In Programmers Guild v. Chertoff,  08-cv-2666 (D.N.J. 2008), the Programmers Guild sued DHS challenging the regulation extending Optional Practical Training from 12 months to 29 months for STEM (Science, Technology, Engineering and Math) students. The plaintiffs in seeking a preliminary injunction argued that DHS had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron,  the agency’s interpretation will also trump a judicial decision interpreting the same statute. The court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff,  338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

In the ICE agents’ case against DACA, the same arguments can be forcefully made. In the event that the court finds jurisdiction, a similar argument can be made that the DHS be given deference in interpreting INA § 103(a)(1), which would allow the DHS Secretary to set forth policies regarding the exercise of prosecutorial discretion as in the Morton Memo and under DACA. Surely, the “body of experience” and the “informed judgment” that DHS brings to the Dream Act provide its interpretations with  “ the power to persuade.” Skidmore  v. Swift  & Co., 323 U.S. 134, 140 (1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation by all Presidents since Ronald Reagan has made “the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001).  Kobach and his clients might profitably peruse Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, 58 Admin. L. Rev. 429 (2006) if they really want to know why they are wrong.  Writing for the Brand X majority, Justice Thomas noted that, in Chevron itself, the Supreme Court deferred to the reversal by the Reagan EPA in 1981 as to the meaning of “statutory source” in the 1977 Clean Air Act amendments. Id. at 440, n. 66.   If  Kobach does not know if the DHS has the power to act, or what the constitutional wellsprings of the DACA memoranda are, we suggest that the Supreme Court does. The very notion of Chevron-deference is “premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gap.” FDA v. Brown & Williamson Tobacco Corp., 529 US 120, 159 (2000).  That is precisely what the DHS has done. Moreover, INA § 274A(h)(3)(B) provides authority to the Executive Branch to grant employment authorization  to whomever it wants. Deferred action has also been around for decades, and Congress has been aware of this administrative benefit, which it recognized when enacting the Real ID Act. Until now, Chevron, and Brand X in particular, have been feared by the immigration bar and immigration advocates for its negative potential as a legitimization of government repression. Yet, it has a positive potential by enabling the Executive to expand individual rights and grant benefits sua sponte. We do not need to live in fear of Brand X. We can make it our own – at least in this law suit challenging DACA.

It is also worth mentioning that while the lawsuit may argue that there is no express Congressional authorization for the Obama Administration to implement such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Administration under through the Morton Memo and DACA is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Nativist lawyers look in vain for explicit authority in the INA that supports DACA relief. They can stop searching:

Congress …may not have expressly delegated authority to…fill a particular gap. Yet,it can still be apparent from the agency’s generally conferred authority that Congress will expect the agency to speak with the force of law when it addresses ambiguity in the statute…even one about which Congress did not actually have an intent as to a particular result.   United States v. Mead, 533 U.S. 218, 229(2001)

Finally, one cannot separate the vitriol against DREAMers in states like Arizona and the law suit challenging DACA. They emanate from the same xenophobia against immigrants without being able to see that the deserving beneficiaries of DACA are out of status for no fault of their own, and even if one pinpoints the blame on their parents, the reason for such a huge undocumented population is because of a broken immigration system that does not provide sufficient avenues to legalize oneself. This law suit challenging DACA, along with the opposition to DACA by the Arizona and other states, essentially challenges the federal government’s authority to exercise prosecutorial discretion. We think this is a losing proposition. In the Arizona v. USA decision, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion, where Justice Kennedy writing for the majority in that decision noted, “A principal feature of the removal system is the broad discretion exercised by immigration officials…Federal officials as an initial matter, must decide whether it makes sense to pursue removal at all.”  Kobach wants the Dreamers kicked out; neither he nor his ICE agents get to make that call; it is up to DHS to decide when, or whether, to initiate such an enforcement campaign.  Heckler v. Chaney, 470 U.S. 821, 835 (1985).  The reason is not hard to figure out;   inherent in the exercise of discretion is the bedrock truth that there is simply “no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410(1971). The good sense and fundamental decency of the American people, guided by the continuing truth of the Constitution, will have to make due. It has served us pretty well so far.