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February 17, 2015

Federal Judge Halts Obama's Executive Amnesty Program

Some good news from Texas.

A federal judge in Texas last night temporarily blocked the Obama administration’s executive actions on immigration. The judge, responding to a suit filed by 26 Republican-run states, did not rule on the legality of immigration orders but said there was sufficient merit to the challenge to warrant a suspension while the case goes forward.

No law gave the administration the power “to give 4.3 million removable aliens what the Department of Homeland Security itself labels as ‘legal presence,’” the judge said in a memorandum opinion. “In fact the law mandates that these illegally-present individuals be removed. The Department of Homeland Security “has adopted a new rule that substantially changes both the status and employability of millions.”

But before we start celebrating too much, remember this is just one district court judge going pretty far out on a limb and issuing an injunction (this isn't a final decision on the merits, just a halt to the program while it's litigated). The administration will no doubt appeal to the 5th Circuit to have the injunction lifted and get the amnesty wheels rolling again.

There are plenty of reasons to keep the champagne on ice.

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.

The immediate question is how does this affect the funding fight in Congress. While some see it as strengthening the anti-amnesty hand (assuming the injunction stands, will Democrats really "shutdown" DHS over a program that isn't going to be implemented this year).

On the other hand, there will no doubt be Republicans who will say, why keep fighting it and risk a backlash if the injunction holds?

One important thing to keep in mind, last night's decision only applies to Obama's recent Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). That's separate from the DACA program which applied to the so-called "dreamers". Unlike the court decision, the House DHS funding bill would also halt the DACA program.

The problem is, no one knows right now if this decision will hold. It could all be moot in a number or hours or days if the 5th Circuit or SCOTUS lifts the injunction.

Even if the injunction is upheld, I think it's important for Congress to fight to preserve it's constitutional powers and use it's power to check an out of control executive. This would be a great opportunity for the GOP to put Obama and the Democrats on the defensive...why are they defending a program that the courts are highly skeptical of?

But it's the GOP, so....yeah.


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posted by DrewM. at 09:11 AM

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