Federal judge orders temporary halt to deferred deportation program. Now what?

Ultimately, the Supreme Court has emphasized that the federal government has broad discretion in the area of immigration that preempts the powers of the states.

A federal district court judge in Texas has ordered a temporary halt to the Obama administration’s deferred deportation plan for some people who are in the country illegally, ruling that it exceeds the authority granted to the executive branch by federal immigration laws:

A federal judge in Texas has ordered a halt, at least temporarily, to President Obama’s executive actions on immigration, siding with Texas and 25 other states that filed a lawsuit opposing the initiatives.

In an order filed on Monday, the judge, Andrew S. Hanen of Federal District Court in Brownsville, prohibited the Obama administration from carrying out programs the president announced in November that would offer protection from deportation and work permits to as many as five million undocumented immigrants.

The first of those programs was scheduled to start receiving applications on Wednesday and the immediate impact of the ruling is that up to 270,000 undocumented immigrants nationwide who came to the United States as children will not be able to apply for deportation protection under an expansion of an existing executive program. A larger new program is scheduled to begin in May.

Judge Hanen, an outspoken critic of the administration on immigration policy, found that the states had satisfied the minimum legal requirements to bring their lawsuit. He said the Obama administration had failed to comply with basic administrative procedures for putting such a sweeping program into effect.

The administration argued that Mr. Obama was well within long-established federal authority for a president to decide how to enforce the immigration laws. But Texas and the other states said the executive measures were an egregious case of government by fiat that would impose huge new costs on their budgets.

The White House responded to the judge’s ruling in a statement early Tuesday, saying the president had acted within the law and with decades of legal precedent behind him in issuing the guidelines.

“The Department of Justice, legal scholars, immigration experts and the district court in Washington, D.C., have determined that the president’s actions are well within his legal authority,” the White House statement said. “The district court’s decision wrongly prevents these lawful, common sense policies from taking effect, and the Department of Justice has indicated that it will appeal that decision.”

In ordering the administration to suspend the programs while he makes a final decision on the case, Judge Hanen agreed with the states that the president’s policies had already been costly for them.

“The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country,” Judge Hanen wrote. “Further, the record supports the finding that this lack of enforcement, combined with the country’s high rate of illegal immigration, significantly drains the states’ resources.”

(…)

In his opinion, Judge Hanen accused administration officials of being “disingenuous” when they said the president’s initiatives did not significantly alter existing policies. He wrote that the programs were “a massive change in immigration practice” that would affect “the nation’s entire immigration scheme and the states who must bear the lion’s share of its consequences.” He said the executive actions had violated laws that the federal government must follow to issue new rules, and he determined “the states have clearly proven a likelihood of success on the merits.”

Since the lawsuit was filed on Dec. 3, the stark divisions over Mr. Obama’s sweeping actions have played out in filings in the case. Three senators and 65 House members, all Republicans, signed a legal brief opposing the president that was filed by the American Center for Law and Justice, a conservative legal action organization.

Joe Arpaio, the sheriff of Maricopa County in Arizona, who is known for crackdowns on people living in the country illegally, also filed a brief supporting the states’ lawsuit. In December, a federal judge in Washington dismissed a separate lawsuit by Sheriff Arpaio seeking to stop the president’s actions.

On the other side, Washington and 11 other states as well as the District of Columbia weighed in supporting Mr. Obama, arguing that they would benefit from the increased wages and taxes that would result if illegal immigrant workers came out of the underground. The mayors of 33 cities, including New York and Los Angeles, and the Conference of Mayors also supported Mr. Obama.

“The strong entrepreneurial spirit of immigrants to the United States has significantly boosted local economies and local labor markets,” the mayors wrote in their filing.

Some legal scholars said any order by Judge Hanen to halt the president’s actions would be quickly suspended by the United States Court of Appeals for the Fifth Circuit in New Orleans.

Federal supremacy with respect to immigration matters makes the states a kind of interloper in disputes between the president and Congress,” said Laurence H. Tribe, a professor of constitutional law at Harvard. “They don’t have any right of their own.”

The states’ lawsuit quotes Mr. Obama as saying many times in recent years that he did not have authority to take actions as broad as those he ultimately took. Mr. Tribe said that argument was not likely to pass muster with appeals court judges.

“All of that is interesting political rhetoric,” he said, “but it has nothing to do with whether the states have standing and nothing to do with the law.”

This ruling by Judge Hansen, a George W. Bush appointee who was originally nominated by President George H.W. Bush only to see his nomination lapse before the Senate could vote on it in 1992, deals with two issues that impact the both the legal merits of the program the president announced and the future of any litigation challenging that program. As I’ve discussed in the past, one immediate hurdle that any party challenging the program, which is officially known as “Deferred Action for Parents of Americans and Lawful Permanent Residents,” or DAPA, is the question of whether or not anyone would have standing under the law to actually challenge the program. Late last year, for example, a lawsuit that had been filed by Sheriff Joe Aripaio of Maricopa County, Ariz., was dismissed by a federal judge in Washington, D.C., at least in part because the judge found that Aripaio lacked standing to challenge the DAPA program. In that case, Arpaio had essentially argued that he had standing to bring the case because the new policy would require his agency to expend resources to deal with illegal immigrants arriving in the area in response to the new federal policy. The judge in that case, correctly in my opinion, rejected Arpaio’s argument because he had failed to articulate any kind of particularized harm resulting from the DAPA program.

In the lawsuit before Judge Hansen, Texas and the other states that had joined it in the litigation are essentially making the same type of argument regarding the alleged damages that they would suffer as a result of the new policy. As I noted when the Texas lawsuit was first filed, it’s an argument that does not really stand up to scrutiny when you look at it logically. Where the judge in Washington rejected Arpaio’s standing argument, though, Judge Hansen essentially accepted it lock, stock, and barrel. Essentially, Judge Hansen argued that Texas and the other states have standing because the new program would increase the number of people eligible for certain state benefits. The problem with that argument, though, is that most of the benefits that the states cite in their favor are not ones that DAPA requires them to issue, so, as the Justice Department argues, the injuries are in some sense self-inflicted. Without question, the standing issue is one that will be heavily argued in the expected appeal of this ruling to the Fifth Circuit Court of Appeals and, if necessary, the Supreme Court.

On the merits of the case, it’s important to note that Judge Hansen has not ruled that the administration acted unconstitutionally in issuing the regulations that make up the DAPA program, or even that the regulations violate the discretion that the nation’s immigration laws grant to the executive branch. Instead, his ruling at this point is based on the argument made by the states that the administration failed to abide by the provisions of the Administrative Procedure Act in issuing the regulations. In theory, the administration could overcome this problem through some mildly cumbersome but ultimately limited bureaucratic measures, but it’s unlikely that will happen given the fact that this is merely a temporary ruling until Hansen rules on the ultimate merits of the state’s claims and that the process of appealing this decision to the Fifth Circuit and, ultimately, the Supreme Court will ultimately be less cumbersome and time consuming. For the time being, though, this means that the DAPA program is on temporary hold and that the estimated three to four million people who would have been eligible to apply under its provisions will have to wait until the stay is lifted to proceed forward.

Ultimately, as I’ve noted before, the Supreme Court emphasized in its decision several years ago regarding Arizona’s controversial bill to give police expanded authority to detain suspected illegal immigrants that the federal government has broad discretion in the area of immigration that preempts the powers of the states. As Ian Millheiser notes, that decision was handed down mere days after the president had announced the initial Deferred Action for Childhood Arrivals (DACA) program that provides temporary legal status for immigrants brought to this country illegally as children. No doubt, the justices were well aware of this program when they were making the final adjustments to their opinions in that case. Indeed, Justice Scalia had taken the rather unusual step of mentioning DACA in his dissenting opinion even though it was entirely irrelevant to the case before the court. As Millheiser argues, if the court shared Scalia’s disdain for DACA, then it seems counterintuitive that they would have been comfortable with issuing an opinion with such a broad endorsement of near-complete discretion for the federal government in general, and the executive branch in particular. Obviously, we can’t know exactly how the justices would rule in this case if and when it reaches them, but the Arizona case certainly seems to suggest that they would be more likely to favor the arguments of the Justice Department than those advanced by the states.

As a preliminary matter, the federal government has already announced that it will be appealing this ruling to the Fifth Circuit, which will have to decide whether or not to stay Judge Hansen’s ruling before ruling on the merits itself. Potentially, the Supreme Court could also be asked to weigh in on the question of a stay of the ruling as well. If that stay is lifted, then DAPA will be able to go forward while the merits case proceeds forward. If it is not, then the program would be on hold until a final ruling is issued and perhaps far beyond then, considering that this is likely to be a case that will find its way to the Supreme Court eventually.

Here’s the opinion:

Texas Et Al v. United States Et Al Opinion 

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.