It was widely expected that the Department of Justice would seek a stay of the injunction a Texas federal judge announced last week against President Obama’s most recent executive action on immigration. You might be a little surprised, though — or this non-lawyer was — but the argument they’re making for why they need a stay that would allow them to go ahead and implement the program. Josh Blackman, a law professor who’s written on President Obama’s executive amnesty for NR, quotes the argument summary (emphasis mine):
A stay pending appeal is necessary to ensure that the Department of Homeland Security (“DHS” or “Department”) is able to most effectively protect national security, public safety, and the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department’s comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources. Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if Defendants ultimately prevail on that appeal. Allowing the preliminary injunction to remain in place pending appeal would also harm the interests of the public and of third parties, who will be deprived of the significant law enforcement and humanitarian benefits of prompt implementation of the Guidance. When these harms are weighed against the financial injuries claimed by Plaintiffs (and found by the Court only as to Texas), the balance of hardships tips decidedly in favor of a stay; the harms claimed by Plaintiffs are not imminent and are fully within their power to avoid.
The argument, more succinctly: Unless we can open the application process to offer millions of illegal immigrants temporary legal status and work permits — a process that is likely to have little, if any, security measures or oversight – we can’t secure the border and protect the public.
Yes, obviously, delaying the implementation of the executive actions — policy directives technically issued by secretary of homeland security — carries costs for the program (illegal immigrants can’t start working illegally — this is alluded to under “humanitarian benefits” in the above quote). It still seems rather amusing that the Obama administration says it has to start expending resources on legalizing immigrants so that it can really take the fight to the border.
In fairness, the clear damages identified by states in their lawsuit are not actually all that substantial, at least so far as the Texas judge’s first brief considers them – it’s costs like issuing drivers’ licenses. So if there really were huge benefits to states and the federal government in terms of increased security after Obama’s executive action, the DOJ’s argument about the balance of costs might make sense. But does anyone really believe this is about focusing DHS resources?