I recently interviewed Harry DeMell, an immigration lawyer since 1977 and a member of the American Immigration Lawyers Association, about the current immigration crisis.
Schupak: Mr. DeMell. During a recent interview you predicted that the Fifth Circuit Court of Appeals would uphold the decision on the DAPA (Deferred Action for Parents of certain Aliens) case. This means that President Obama's order to allow parents of children who were brought here without permission to remain and work here will not be implemented.
DeMell: That's correct. What happened was that the president issued an order that would allow the parents of children brought here illegally, to remain legally with their children. These were in most cases the parents that brought these children here illegally in the first place. Many states sued claiming that this program would affect them financially and that the program should be stopped. The federal court in Texas issued an order stopping the implementation of the president's order until the case could be decided in full. The president wanted to go ahead with the order and appealed the stay to the next highest court, which is the United States Court of Appeals for the Fifth Circuit.
Schupak: And they issued an order this week.
DeMell: Yes. That court upheld the stay, which means that the government cannot go ahead with the order and legalize the parents until the case is completely decided. With possible appeals this would mean that no action will take place on this until the next administration.
Schupak: What do you think about this order?
DeMell: Let's take it in pieces. First the court had to find standing. That means that a court won't take a case unless there are real interests at stake. Here the court based these interests in part upon harm the states would suffer based upon costs to their departments of motor vehicles. It sounds weak and might be overturned on that basis if the Supreme Court accepts an appeal.
Schupak: What else?
DeMell: There is much discussion about whether the president should have complied with the Administrative Procedure Act (APA) that requires a certain procedure before these orders can be implemented. The administration ignored these requirements.
Schupak: Why did they do that?
DeMell: I don't know. It seems like first year law school that they should have complied. They could have done it during this appeal and would have been finished by now. It seems that they don't like the fact that they have to comply. They might feel that to comply with the APA now would be an admission of their mistake.
Schupak: What about the meat of this suit?
DeMell: From a legal standpoint both sides are on shaky ground. The administration handled this amateurishly. Shows a bit of arrogance that they think they can just do what they want. They can't. Even the president has to comply with the law. Also, the plaintiffs claimed something called 'abdication standing' claiming that when the federal government refuses to do the job required of them by law the states can step in and take the responsibility.
Schupak: Is that legal?
DeMell: The Supreme Court will decide that but I would argue that it's better left undecided.
Schupak: Why?
DeMell: Because if this new abdication standing basis is approved it will open the door for all manner of state challenges to federal jurisdiction and open the floodgates of litigation in all areas of federal state law. Bad for separation of powers. Good for the lawyers though.
Schupak: So how do you think this will play out?
DeMell: I think the administration over reached and the next administration will either completely redo this correctly or drop it.
Schupak: What do you think about the underlying issue?
DeMell: I believe that the president is trying to do an end run around congress. Those who want an amnesty would support him but procedurally it is not good for American jurisprudence for the president to do whatever he wants without regard to the law.
Schupak: But doesn't the president have discretion to deal with aliens?
DeMell: As this decision discusses, the president has discretion on a case-by-case basis. This program will not do that. The proper way would be for the president to try to work with congress to come up with a program that would allow those parents that have been here a significant amount of time and can show significant hardship to their children to get relief. If they can't show this then they are just here illegally and it is never a good policy to encourage people to break the law.
Schupak: How would you handle this issue?
DeMell: I would create a form of relief that would take into account the special issues these classes of aliens have and have these issues decided on a case by case basis in deportation court. Of course this would require a much larger immigration court system but I believe that we need to do that anyway.
Schupak: Let's save that issue for another time. Thanks.