A carefully targeted lawsuit by states opposed to President Barack Obama’s immigration executive actions hit a bulls-eye Tuesday, forcing postponement of a key element of the president’s plan hours before it was to get underway.
But the injunction issued late on the President’s Day holiday by a federal judge appointed by President George W. Bush could just be the beginning of a rocky legal ride for the Obama White House.
Obama vowed to appeal the ruling, but that challenge will head to a court considered the most conservative federal appeals court in the country: the 5th Circuit. Its active judges are Republican by a 2-1 margin.
Still, the president sounded optimistic that his legal position will ultimately be vindicated.
“I disagree with the Texas judge’s ruling, and the Justice Department will appeal,” Obama said at a meeting with new Defense Secretary Ash Carter that was hastily opened to access by journalists.
“This is not the first time where a lower court judge blocked something or attempted to block something that ultimately was shown to be lawful. And I’m confident that it is well within my authority and position of the executive branch’s prosecutorial discretion to execute this law,” the president said in response to questions. “I think the law is on our side and history is on our side.”
The White House’s best chance to get Obama’s immigration efforts back on track may lie with the Supreme Court, which issued a 5-3 ruling in 2012 backing strong discretion for the federal government in immigration enforcement. (Justice Elena Kagan recused herself from that decision but seems likely to back Obama in the latest fight.)
The current dispute could wind up at the high court on an emergency basis within days, but administration officials were not specific about whether they will immediately demand that Obama’s immigration actions be allowed to resume.
“We are still in the process of looking at the opinion and trying to decide what steps we might take next,” Attorney General Eric Holder told reporters at the National Press Club Tuesday. “We have to look at this decision for what it is: it is the decision by one federal district court judge. I expect—have always expected that this is a matter that will ultimately be decided by a higher court, if not the Supreme Court then a federal court of appeals….This, I would view as an interim step in a process that has more to play out.”
Administration officials stepped gingerly around questions about whether the decision from U.S. District Court Judge Andrew Hanen was political.
The White House insisted that Hanen’s ruling did not surprise them, even though it required cancellation for now of the first round of applications for an expanded program to allow immigrants who arrived illegally in the U.S. as children to get quasi-legal status and work permits. The judge’s order also came as the administration and its allies had a nationwide media blitz set Tuesday to urge illegal immigrants eligible for an expanded program to file applications starting Wednesday.
“This is something we were prepared for,” White House Press Secretary Josh Earnest told reporters on a late-afternoon conference call. “Those who are veteran court-watchers were not surprised by this particular judge’s ruling based on his previous statements on this issue.”
Earnest appeared to be referring to comments Hanen has made in previous immigration cases, including one more than a year ago where he may have foreshadowed his latest ruling.
The Department of Homeland Security “has simply chosen not to enforce the United States’ border security laws,” Hanen wrote in a 2013 case, highlighted by the Associated Press in December. He called the government’s failures “both dangerous and unconscionable,” but also declared, “This court takes no position on the topic of immigration reform, nor should one read this opinion as a commentary on that issue.”
A spokesperson for Gov. Greg Abbott (R-Texas), who spearheaded the suit, said it was filed in Brownsville because of the impact of illegal immigration there. By filing in that court division, opponents of Obama’s immigration plan had a 50 percent chance of getting the case in front of Hanen and a 50 percent chance it would be assigned to another judge who is a Clinton appointee.
White House aides were long on criticism of Congressional Republicans for obstructing immigration reform legislation and short on direct rebuttal of the points Hanen made in his opinion.
While Republicans have accused Obama of bypassing Congress to implement an amnesty for illegal immigrants, Earnest said the GOP was perpetuating a situation in which millions of individuals work in the underground economy because they lack work authorization.
“The closest thing we have to amnesty is that situation, which Republicans right now are protecting,” the press secretary said. “The president’s actions aren’t just legal, they’re clearly the right thing to do for the country.”
Hanen’s 123-page opinion actually accepts some of the administration’s argument that the president has discretion to set deportation priorities. However, the judge said the executive branch lacks authority to give illegal immigrants work permits, as Obama’s new actions would and as a prior program he announced in 2012 for so-called Dreamers already has.
“Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits,” the judge wrote. “The DHS cannot reasonably claim that, under a general delegation to establish enforcement priorities , it can establish a blanket policy of non-enforcement that also awards legal presence and benefits to otherwise removable aliens….It cannot, however, enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them.”
Immigrant rights advocates said the issuance of work permits to illegal immigrants has been a practice of the federal government for decades, including in cases where foreigners are awaiting decisions on claims of asylum or relief from deportation due to issues in their home countries.
Backers of Obama’s immigration actions also said they detected hostility in Hanen’s ruling, particularly in references to a 1982 Supreme Court ruling that effectively required states to offer free public education to all children, regardless of whether they are in the country legally.
“That’s not even an issue in this case,” said Debbie Smith of the Service Employees International Union. “It gives us an idea of where he’s coming from.”
Critics of Obama’s immigration moves celebrated another aspect of Hanen’s ruling: his assertion that the administration’s claims that it will consider illegal applications on a case-by-case basis was “merely pretext.”
A Justice Department legal opinion the administration released in November to bolster Obama’s actions said it was “critical” that such immigration programs “require officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically.”
Hanen insisted the administration wasn’t really doing that with the existing program for Dreamers. “It is clear that only 1-6% of applications have been denied at all, and all were denied for failure to meet the criteria, [for technical errors,] or for fraud,” he wrote. “There were apparently no denials for those who met the criteria.”
The judge said the administration ignored his request for data about denials. Statistics the administration sent to a reporter Tuesday did not indicate how many applications were denied on that basis.
“It is a rubber stamp,” Kansas Secretary of State Kris Kobach said of the paperwork process U.S. Citizenship and Immigration Services uses to consider applications. The legal challenge he launched to Obama’s 2012 executive action for Dreamers is still making its way through the courts.
But some lawyers who handle immigration matters said rejections for unstated reasons are common.
“We can point to numerous cases [in which] the administration did reject individuals…and that was based on exercise of discretion,” said Marielena Hincapié of the National Immigration Law Center. “In our experience, this is very much an individualized, case-by-case adjudication.”
While Hanen’s ruling has the spotlight for the moment because it led to a halt of Obama’s latest immigration actions, two other pending could buttress the president’s moves or cause further turmoil.
Another George W. Bush-appointed federal judge in Texas, Reed O’Connor, ruled in 2013 that Obama’s earlier program for Dreamers appeared to be “contrary to Congressional mandate.” However, the judge tossed the lawsuit on standing grounds. That case was argued before the 5th Circuit earlier this month before a panel of two Republican appointees and one Democratic appointee and could be decided at any time.
The White House pointed repeatedly Tuesday to a decision a federal judge in Washington, Beryl Howell, issued in December which threw out a challenge Arizona Sheriff Joe Arpaio brought to Obama’s new immigration actions. Howell also said Arpaio lacked standing to mount a challenge, but she did so in a ruling that gave a broad view of the president’s immigration authority..
That case is also on appeal and is likely to be argued in front of the D.C. Circuit in the spring.
Kobach said Tuesday he’s convinced that Hanen’s expansive opinion has given momentum to the series of cases seeking to undo Obama’s immigration moves.
“It’s a very good opinion,” the Kansas official said. “This is very much a live legal battle.
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