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Federal judge halts Obama’s immigration plan Judge’s immigration ruling adds to Obama’s list of potential legal pitfalls
(about 5 hours later)
The political feud over immigration reform between President Obama and his Republican critics took a dramatic turn late Monday when a federal judge in Texas temporarily blocked recent executive actions by the president, delivering a legal setback to his bid to stop the deportations of millions of illegal immigrants. President Obama’s new immigration program was supposed to begin accepting applications Wednesday from thousands of illegal immigrants hoping for relief from the threat of sudden deportation. Instead, the administration abruptly postponed its launch plans after a federal judge in Texas temporarily blocked implementation of the new White House initiative.
U.S. District Judge Andrew S. Hanen, responding to a suit filed by 26 states, did not rule on the legality of the immigration orders Obama announced in November. But he said there was sufficient merit to warrant a suspension of the new program while the case goes forward. In a decision late Monday, U.S. District Judge Andrew S. Hanen ruled that the deferred-deportation program should not move forward while a lawsuit filed by 26 states challenging it was being decided. Though Hanen did not rule on the constitutionality of Obama’s November immigration order, he said there was sufficient merit to warrant a suspension of the new program while the case goes forward. All told, Obama’s immigration actions are projected to benefit as many as 5 million immigrants, many of whom could receive work permits if they qualified.
The immediate impact appeared likely to at least delay the application process, which was to begin Wednesday for some undocumented immigrants. The White House quickly announced that the administration will appeal the ruling. The effects of Hanen’s procedural ruling rippled through Washington and underscored a broader challenge to the president as he seeks to solidify the legacy of his administration.
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,’ ” Hanen said in a memorandum opinion. “In fact the law mandates that these illegally-present individuals be removed.” Along with the immigration action, the fate of two of Obama’s other signature initiatives — a landmark health-care law and a series of aggressive executive actions on climate change — now rests in the hands of federal judges. It is a daunting prospect for a president in the final two years of his tenure who believes he is on the path to leaving a lasting impact on in­trac­table and politically perilous issues, despite an often bitter relationship with Congress.
The Department of Homeland Security “has adopted a new rule that substantially changes both the status and employability of millions,” he wrote. Now, Obama and his Republican antagonists in Congress face the uncertainty of having their disputes mediated by the third branch of government. In an appearance in the Oval Office on Tuesday, Obama said he was confident that he would prevail, telling reporters, “The law is on our side and history is on our side.”
Obama issued his immigration orders shortly after the midterm election, saying he could no longer wait on Congress to reform border control laws that have left more than 11 million illegal immigrants in limbo. Under his orders, the undocumented parents of U.S. citizens and permanent residents who have resided in the country for at least five years were eligible to apply for three-year reprieves from deportation. Many also could receive work permits. “This is not the first time where a lower-court judge has blocked something or attempted to block something that ultimately is going to be lawful,” he added, “and I’m confident that it is well within my authority” to execute this policy.
The judge’s ruling also suspends an expansion of the president’s 2012 Deferred Action for Childhood Arrivals (DACA) program, which allows young immigrants who arrived as children but are now here legally to apply for a deportation deferral. About 700,000 people already have benefited from that program, and they will not be affected by the ruling. The immigration fight will probably head next to the U.S. Court of Appeals for the 5th Circuit after the White House vowed to quickly appeal Hanen’s ruling. In the meantime, Homeland Security Secretary Jeh C. Johnson said Tuesday that his agency would postpone plans to begin accepting applications for the new program, which would expand a 2012 program that defers deportations of immigrants who came to the United States illegally as children. (The 700,000 people who have already benefited from that program will not be affected by Hanen’s ruling.)
As many as 5 million undocumented immigrants were said to be potentially eligible to benefit from Obama’s executive actions. A second, much larger program designed to protect from deportation the undocumented parents of U.S. citizens and permanent legal residents was not scheduled to begin accepting applications until late May, and its future remains uncertain.
On health care, the Supreme Court will hear arguments next month in King v. Burwell, a case that calls into question whether millions of people who have bought coverage on the federal health exchanges are entitled to subsidies.
In April, the U.S. Court of Appeals for the District of Columbia Circuit, just one rung below the Supreme Court, will hear three consolidated cases challenging the Environmental Protection Agency’s right to use a provision of the Clean Air Act to regulate greenhouse gas emissions from power plants.
“The Supreme Court’s docket in recent terms looks a lot like an outline for a stump speech for a 2016 [presidential] candidate. Immigration, check. Climate, check. Health care, check,” Doug Kendall, president of the Constitutional Accountability Center, said in an e-mail. “The Court is deciding just about every major question that divides Americans along ideological lines.”
In addition to the ongoing immigration suit from the 26 states — 24 of which are led by GOP governors — House Republicans are considering filing their own suit against the administration over its immigration actions.
“I guess we’re getting used to getting sued,” White House senior counselor John D. Podesta quipped in an interview last week, just before he stepped down from his West Wing role.
The pending case over the Affordable Care Act — passed in 2010 — shows how in the never-ending political fight between the parties, even the passage of major legislation through Congress does not constitute a permanent victory, said Jonathan Oberlander, a professor of health policy at the University of North Carolina at Chapel Hill.
“It’s really incredible they attained the unattainable, and now the question is whether they can keep it,” Oberlander said of Democrats.
One senior Senate Democratic aide, who asked for anonymity in order to discuss party strategy, said one reason Senate leaders pushed so hard in the last Congress to seat Obama’s nominees on the D.C. Circuit was that “having judges who may be more sympathetic to the administration’s view is not an insignificant way of safeguarding against” legal reversals.
Hanen, a George W. Bush appointee, has been critical of Obama’s immigration policies in other cases.
In the last Congress, the Senate confirmed four of Obama’s nominees to the D.C. Circuit, which hears many challenges to executive actions. Active Democratic appointees now outnumber Republican ones there 7 to 4.
Jeffrey R. Holmstead, a partner at the law firm Bracewell & Giuliani who represents several electric utilities, said Democrats should not be so confident, especially since the more conservative Supreme Court will have the final say in many of these cases.
On immigration, Democrats and Republicans scrambled Tuesday to determine how Hanen’s ruling would affect a showdown over GOP demands to make funding for the Department of Homeland Security, which expires next week, contingent on halting Obama’s “deferred action” program. The White House has threatened to veto any legislation if it contains language overturning the president’s immigration programs. Such a veto could lead to a partial DHS shutdown.
Obama issued his immigration orders shortly after the midterm elections in November, saying he could no longer wait on Congress to reform border control laws that have left more than 11 million illegal immigrants in limbo. An effort to pass a comprehensive immigration bill failed last summer.
But in his lengthy memorandum opinion, Hanen ruled that 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.’ In fact, the law mandates that these illegally-present individuals be removed.”
Hanen’s decision was a major, if temporary, defeat for the administration, which argued that the case should be thrown out because it is “based on rhetoric, not law.”
“This ruling underscores what the president has already acknowledged publicly 22 times: He doesn’t have the authority to take the kinds of actions he once referred to as ‘ignoring the law’ and ‘unwise and unfair,’ ” Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday.
The White House has said the president’s actions were based on the practice of “prosecutorial discretion,” which allows law enforcement agencies with limited resources to set priorities.The White House has said the president’s actions were based on the practice of “prosecutorial discretion,” which allows law enforcement agencies with limited resources to set priorities.
“The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws — which is exactly what the president did,” White House press secretary Josh Earnest said in a statement early Tuesday. “The Supreme Court and Congress have made clear that the federal government can set priorities in enforcing our immigration laws — which is exactly what the president did,” White House press secretary Josh Earnest said.
Immigration advocates charged that Hanen, a George W. Bush appointee, had narrowly “cherry-picked” his ruling and projected confidence that the U.S. Court of Appeals for the 5th Circuit would overturn his decree, allowing the deferred-action program to move forward. Hanen based his temporary injunction on his belief that the administration, in making such a broad change to what current law “mandates,” at the very least did not comply with the elaborate rulemaking process of the Administrative Procedure Act, the nearly 70-year-old stature that governs how federal agencies implement regulations — including its 90-day notices and comment periods.
He said the case should go forward rather than be thrown out, as the administration has urged.
Immigration advocates charged that Hanen had narrowly “cherry-picked” his ruling and said they would urge immigrants to keep preparing their applications.
“Our message to our members and to families who are preparing for deferred action is: Don’t panic. Keep preparing,” said Debbie Smith, associate general counsel of the Service Employees International Union, which filed a legal brief in support of the administration. “We think this is a timeout, a bump in the road.”“Our message to our members and to families who are preparing for deferred action is: Don’t panic. Keep preparing,” said Debbie Smith, associate general counsel of the Service Employees International Union, which filed a legal brief in support of the administration. “We think this is a timeout, a bump in the road.”
The administration’s directives have been vigorously challenged by Republicans in Congress and nationwide, who cite them as examples of what House Speaker John A. Boehner (R-Ohio) has called Obama’s “legacy of lawlessness.” The House last summer refused to vote on a bipartisan, comprehensive immigration reform bill the Senate had approved in 2013. If opponents of the president’s health-care, climate and immigration policies prevail in court, it is unclear what Republicans would propose as replacements. Three House panels have just begun working on alternatives to the Affordable Care Act, but Republicans remain opposed to mandatory limits on carbon from power plants and have yet to draft a comprehensive immigration bill of their own.
The House GOP has threatened to deny funding to the Department of Homeland Security this month unless the appropriation includes provisions that would roll back the immigration orders — amendments certain to be vetoed by Obama, possibly leading to a partial DHS shutdown. “They’re tearing stuff down without trying to offer any alternative if this thing crashes,” said Simon Rosenberg, founder of NDN, a liberal think tank. The administration, he added, is “confident the laws are behind them, but they are aware this is out of their hands. We don’t know what will happen.”
Hanen’s ruling was a major, if temporary, defeat for the administration, which argued that the case should be thrown out as meritless, “based on rhetoric, not law.” “There’s a level of chaos that could affect the health-care system and the entire functioning of DHS,” Rosenberg said. “[Republicans] are not taking responsibility for the chaos they’re creating. If they win, what are they going to do?”
“This ruling underscores what the president has already acknowledged publicly 22 times: He doesn’t have the authority to take the kinds of actions he once referred to as ‘ignoring the law’ and ‘unwise and unfair,’ ” Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday. Fred Barbash contributed to this report.
Specifically, the lawsuit claimed that the president’s orders unilaterally changed federal immigration law, usurping Congress’s exclusive power to legislate, and violated the president’s constitutional duty to “take care that the laws be faithfully executed.”
It also said Obama violated the Administrative Procedure Act by not running his orders through the elaborate process of rule-making — including 90-day notices and comment periods — instead just pushing them through via directives.
“Today’s ruling reinforces what I and many others have been saying for a long time: that President Obama acted outside the law when he went around Congress to unilaterally change our nation’s immigration laws,” said Sen. John Cornyn (R-Tex.). “Today’s victory is an important one, but the fight to reverse the president’s unconstitutional overreach is not over.”
The administration countered that the states would suffer no harm from the executive orders and thus they had no standing to sue. It argued, as well, that the executive branch has sufficient power over immigration, through “prosecutorial discretion,” to implement the changes just as it did.
Hanen based his temporary injunction on his belief that the administration, in making such a broad change to what current law “mandates,” at the very least did not comply with the Administrative Procedure Act’s provisions on “notice and comment.” He said the case should go forward rather than be thrown out, as the administration has urged.
Hanen said it was necessary in the meantime to stop implementation in part because not doing so could prove costly to the states. They would have to deal with suddenly legalized immigrants who “armed with Social Security cards and employment authorization documents,” would seek various government benefits and services. “Once these services are provided, there will be no effective way of putting the toothpaste back in the tube” should the states ultimately prevail on the merits.
The order was made public by Texas Gov. Gregg Abbott (R), who filed the suit Dec. 3, when he was the state’s attorney general.
“President Obama abdicated his responsibility to uphold the United States Constitution when he attempted to circumvent the laws passed by Congress via executive fiat,” Abbott said in a statement, “and Judge Hanen’s decision rightly stops the president’s overreach in its tracks. We live in a nation governed by a system of checks and balances, and the president’s attempt to by-pass the will of the American people was successfully checked today.”
Cecilia Wang, director of the American Civil Liberties Union’s Immigrants’ Rights Project, said in an interview that contrary to Abbott’s assertions, “it is not a constitutional ruling,” and that it hinges on whether the government “failed to follow the notice and comment requirements in the Administrative Procedures Act.”
The fact that the judge ruled Texas has standing to sue, but issued a nationwide injunction, Wang added, raises a question about how broad its impact really is.
“There’s a legal problem with that. We’ll see how this shakes out as the litigation proceeds,” she said.
Wang said that even though she was confident that the ruling would be reversed, even an eventual legal victory on Texas’s part might not mean the demise of the program. “It could result, essentially, in a do-over,” she said.
Juliet Eilperin contributed to this report.