Heads-I win, Tails-You Lose

Got off the phone yesterday with my chief pilot here in Chicago. I was proposing feeding our local airport TSA workers, but found out that there were other station departments that had already beaten me to the punch (a couple of times over, no less). Anyhow, my sympathies go out to those federal workers who are having to muddle through this partial shutdown, whether they be furloughed, or coming into work without a paycheck.

The one thing that continues to rattle around in my brain casing is how unnecessary this whole thing has been. You can point fingers at either side, but that doesn’t solve one of the underlying problems here, i.e. why the Federal Government does not have a fully funded budget this far into the fiscal year. In fact, the last time the government was funded prior to the start of a fiscal year was FY 2009, or just prior to the 2008 general election. The President could have picked his battles a little more carefully, but then again, almost no one has been paying particular attention to what’s brewing in a federal courthouse in the Southern District of Texas.

Back in 2015, Texas and twenty-five other states sued the Obama Administration over a program called Deferred Action for Parents of Americans or DAPA. Basically, it was a program that allowed illegal/undocumented immigrant parents of children born here to stay on U.S. soil. The government argued that the states didn’t have standing to bring the suit, but the judge hearing the case disagreed and let the case go forward. One of the arguments at the heart of the suit was the administration’s failure to adhere to the Administrative Procedures Act (APA). Per the law, any federal agency that sets up a program or promulgates rules that have the effect of law, is required to open up the proposed program or rules to public comment (think scrutiny). The court sided with the plaintiffs and issued an injunction against the program.

The administration appealed the ruling to the 5^th Circuit Court of Appeals in New Orleans. Not only did the appeals court side with the lower court’s ruling, but further found that since only Congress gets to decide on how immigration law is administered, the executive branch had overstepped its authority by not getting congressional buy in for this program, meaning it was in violation of the Immigration and Nationalities Act (INA). The case made a brief appearance at the Supreme Court in 2016, but due to the death of Justice Scalia, the court deadlocked 4-4. It was then sent back to the lower court as having been settled with no chance of a rehearing. Rather than unwinding the program, the Obama Administration decided to leave it to the next administration to handle since this was an election year. Of course, no one could have predicted that the Trump Administration would be the recipient of this decision.

Shortly after the new administration had taken the reins, Texas and a handful of the states involved in the first suit threatened to sue the government over another program, DACA (Deferred Action for Childhood Arrivals) or the so-called Dreamers. Being wary of another protracted court battle that the government would probably lose, the Trump Administration decided to go ahead and unwind DACA and DAPA. Supporters of DACA went before a liberal judge in the Northern District of California (comfortably ensconced in the back yard of the 9^th Circuit Court of Appeals) to get an injunction to keep it from being dismantled. Seeing how this was going to play out, Texas et al. decided to go ahead with the second suit, knowing that the only way to kill the beast outright, was to drive a stake through its heart. It only stood to reason that since DAPA was the younger sibling of DACA and they were built on similar firmament, similar arguments could be made as to why the program could not stand.  I believed that as well. That is, until I read the dissenting opinion in the 5^th Circuit Court ruling.

The dissenting judge made a convincing argument that DAPA did not fall under the purview of the APA, since it did not confer any rights or benefits to any class of individual who was not here legally per the INA. Instead, it was a program based on enforcement actions that were well within the purview of the Department of Homeland Security (DHS) and its prosecutorial discretion.  What this means is that the agency could keep the program as is, change any portion of it, or dismantle it altogether. If the courts rule in favor of the plaintiffs, DACA is dead and gone since it would be in violation of federal laws. If the argument that the agency has broad prosecutorial powers is upheld, then DHS could go ahead and unwind DACA without further legal challenge. The Trump Administration is about to be handed a victory it hadn’t seen coming, while the Democrats, the Dreamers, and supporters of unfettered immigration are about to get blindsided by a 300-pound defensive lineman. The only choice the Democrats will have (if they want to survive politically) will be to come back to the bargaining table and deal in good faith with the President and Republicans on real immigration reform. And yes, that will include a wall or barrier of some kind.  Heads-I win, tails- you lose.

It’s going to be very interesting to see what comes of all this.