The Corner

Federal Judge Blocks Implementation of Obama’s Executive Amnesty, For Now

A federal judge for the Southern District of Texas granted an injunction tonight blocking the implementation of President Obama’s sweeping executive action on immigration from November, which offered a form of temporary legal status and work authorization to millions of illegel immigrants. The judge, Andrew Hanen, is considering a case brought by the attorney generals of 26 states, which alleges that the executive action is improper and unconstitutional, and will harm the states by forcing them to pay for some benefits granted to newly legal immigrants, such as drivers’ licenses, and for higher law-enforcement costs.

The federal government is expected to immediately ask for a stay of the injunction. That would allow the feds to resume the process of preparing to grant quasi-legal status to millions of illegal immigrants — applications for one category of the president amnesty were to open this week. For now, that can’t happen; the decision from a higher court will probably take a few weeks.

Whatever the final decision is, this ruling should a bit of ammunition for Republicans who are currently trying to force some Democrats into agreeing to a government-funding bill in Congress that blocks the implementation of the order, which many Democrats once opposed.

Such an injunction isn’t granted unless the judge feels the plaintiffs have “a substantial likelihood of success on the merits.” Hanen’s ruling offers analysis of whether the states have standing to sue (on a number of grounds, he says they do), and whether they have a good chance at success.

The basic argument from the states that Hanen favors isn’t one about constitutional improprieties (he doesn’t get to that question, which the states have raised); it’s that the Department of Homeland Security has effectively created a whole new program and procedure without following any of the legally necessary steps. The Obama administration’s use of deferred action amounts to new rulemaking, Hanen suggests, because there’s so little evidence that the system, based on DACA, involves case-by-case discretion, as the feds claim it does.

Josh Blackman, a professor at the South Texas College of Law who’s written about the executive-amnesty issue for NR, has analysis of the full ruling here.

The ruling is certainly exciting for those who were troubled by the president’s actions, but a few reasons why not to get too excited:

‐ The Fifth Circuit, the federal-court region that includes Texas, could stay the injunction relatively soon, though, allowing the granting of legal status to go forward. (Although the program could, in theory, eventually still be struck down.)

‐ Hanen is not necessarily anything but a mainstream judge, but he is a Bush appointee who, the Times notes, has a record of hawkish immigration opinions. That has no bearing on the logic of his decision, but it might suggest other judges won’t necessarily agree with Hanen’s reasoning.

‐ Whether states even have the right to challenge the president’s action isn’t entirely clear, partly because immigration enforcement is almost exclusively a federal domain. Attorney Ian Smith laid out the states’ case for standing on NRO here. Congressional Republicans have said they’d like to challenge the president’s order in court, too; their case for standing is considered more far-fetched. On the upside, the judge’s decision in Texas grants standing to the states on multiple grounds where they argue they have it, though not all of them.

‐ Relatedly, courts are just pretty deferential when it comes to fights between the other two branches. Hanen’s ruling notes this repeatedly, maintaining that in order for the courts to halt the executive branch, it has to be actively, affirmatively doing something unauthorized, rather than just overstepping its bounds or abdicating its powers.

‐ An Obama-appointed federal judge ruled in December that Sheriff Joe Arpaio didn’t have standing to sue over the president’s actions — a different case, for sure, but not entirely separate, since the 26 states involved in this case are alleging that legalized immigrants pose a law-enforcement threat, as Arpaio argued, too. The other case that has gone against Obama on this issue, a Pennsylvania federal judge’s ruling that the amnesty is unconstitutional, has been considered flimsy and overreaching; Blackman notes that Hanen’s decision is much better reasoned.​

The lawsuit just challenges the executive action announced in November, which offers “deferred action” status, a form of theoretically temporary legal residency and work authorization, to illegal immigrants with specific ties to the U.S. — the parents of citizens, etc. The categories in all add up to 4 to 5 million eligible illegal aliens.

That comes on top of the close to a million illegal immigrants eligible for deferred action under the president’s 2012 executive action, which allowed illegal immigrants who’d come here at a young age and met a few other criteria to stay. The Texas court decision examines that program, known as DACA, in detail, but it isn’t at issue in the case. A number of outlets refer to this injunction as halting “DACA expansions,” which is true, but a bit of a misnomer: The “DACA expansions” are deferred action for adults and childhood arrivals who were older or otherwise ineligible for the DACA program the president started in 2012. They’re not really the same thing, and DACA itself — the status it gave to hundreds of thousands of illegal immigrants and the application process they can still begin now if they haven’t gotten status — is unaffected.

This differs slightly from the political strategy Republicans have put forth in Congress: The bill the House passed earlier this year to fund the Department of Homeland Security would halt the DACA program, block the implementation of the president’s November action, and undo some of his other executive immigration policies, too.

Patrick Brennan was a senior communications official at the Department of Health and Human Services during the Trump administration and is former opinion editor of National Review Online.


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