On Tuesday, Judge Andrew Hanen of the United States District Court for the Southern District of Texas issued a temporary injunction against the Department of Homeland Security’s enforcement of President Obama’s executive amnesty. In a comprehensive 123 page opinion, Hanen smacks down the Obama administration repeatedly.
Hanen begins by examining the legacy of executive branch failures to enforce immigration law, then points out that states have borne the brunt of cost related to ineffectual immigration enforcement:
While the States are obviously concerned about national security, they are also concerned about their own resources being drained by the constant influx of illegal immigrants into their respective territories, and that this continual flow of illegal immigration has led and will lead to serious domestic security issues directly affecting their citizenry.
Hanen then quotes Chief Justice John Roberts’ opinion in his infamous greenlighting of Obamacare to the effect that Congress has the power to determine immigration policy. Hanen writes:
The ultimate question before the Court is: Do the laws of the United States, including the Constitution, give the Secretary of Homeland Security the power to take the action at issue in this case?
Hanen says that he is not questioning the policy decency of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program pushed by President Obama, but of aspects of its legality. He adds that President Obama’s program may or may not be an amnesty, but says that it makes no difference what you call the program; only its legality is in question. Finally, Hanen sums up the issues:
(1) whether the States have standing to bring this case; (2) whether the DHS has the necessary discretion to institute the DAPA program; and (3) whether the DAPA program is constitutional, comports with existing laws, and was legally adopted.
After summing up the legal and factual background of the case, noting the contentions of both the administration’s critics and the administration’s responses, Hanen comes to the actual legal arguments.
He first discusses the issue of “standing,” the requirement in any case that the plaintiff in a case be directly affected by the law in question. That requirement breaks down into three elements: that the plaintiff suffer a “concrete and particularized injury that is either actual or imminent”; that there is a causal relationship between the statute and the damages; and that the injury could “likely” be addressed by the court striking down the regulation. Further, the judge points out, a broad harm to the general population should be addressed politically, not in the courts.
The judge points out a second level of standing as well: standing under the Administrative Procedure Act, which allows standing to a “person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
The ruling states that the states do have standing to contest the executive amnesty, citing the costs associated with processing of driver’s license, and the fact that supposed workarounds to avoid costs will likely be contested by the federal government, as the federal government did with regard to Arizona’s immigration law. “The federal government made it clear in Arizona (and would not retreat from that stance in this case),” the ruling states, “that any move by a plaintiff state to limit the issuance of driver’s licenses would be viewed as illegal.” The court further rules that these damages are not generalized, but particular to the driver’s license program. The judge slams the federal government’s incoherent immigration policy:
Although the federal government conceded that states enjoy substantial leeway in setting policies for licensing drivers within their jurisdiction, it simultaneously argued that the states could not tailor these laws to create ‘new alien classifications not supported by federal law.’ In other words, the states cannot protect themselves from the costs inflicted by the Government when 4.3 million individuals are granted legal presence wit the resulting ability to compel state action. The irony of this position cannot be fully appreciated unless it is contrasted with the DAPA Directive. The DAPA Directive unilaterally allows individuals removable by law to legally remain in the United States based upon a classification that is not established by any federal law. It is this very lack of law about which the States complain. The Government claims that it can act without a supporting law, but the States cannot.
As the judge adds, it is certainly ironic that the federal government is butting into the driver’s license business, given that it is traditionally a state function. He also points out that the feds require the states to pay certain fees for processing of driver’s licenses.
With regard to causation, Judge Hanen finds that there is a clear relationship between the regulation and the cost. He also finds that striking down the regulation would achieve the goal of avoiding that cost.
Hanen also points out several other possible grounds for standing. Hanen says parens patraie – the ability of a state to bring suit “to protect the interests of its citizens” – applies to state suits against the federal government. The state argued that businesses will be forced to cover health insurance for illegal immigrants under the new program. The federal government made the frightening argument that the federal government is the protector of the interests of citizens, so states could not file suit against the feds. Hanen says states could file parens patraie suit, but that this case has not yet materialized because the federal government has not made clear its intentions with regard to Obamacare.
Hanen then moves on to the biggest argument of all: the argument that the federal government’s refusal to enforce its borders costs the states money, and that that loss makes federal policy justiciable. He says that these costs are not directly related to DAPA:
The Court finds that the Government’s failure to secure the border has exacerbated illegal immigration into this country. Further, the record supports the finding that this lack of enforcement, combined with this country’s high rate of illegal immigration, significantly drains the States’ resources. Regardless, the Court finds that these more indirect damages described in this section are not caused by DAPA; thus the injunctive relief requested Plaintiffs would not redress these damages.
The court also rejected the argument that allowing illegal immigrants to stay increases costs with regard to programs like education, explaining that the “Constitution and federal law mandate that these individuals are entitled to state benefits merely because of their presence in the United States, whether they reside in the sunshine or the shadows.” The Court adds that the specific costs associated with DAPA – the argument that “continued presence in this county will increase state costs” — is solid, but that the federal argument that the economy will pay for all of that is at least supportable. Finally, the Court states that the federal government’s statements encouraging illegal immigration are not redressable.
The Court then turns to the issue of standing with regard to abdication. Judge Hanan says that “The most provocative and intellectually intriguing standing claim presented by this case is that based upon federal abdication,” the theory by which the “federal government asserts sole authority over a certain area of American life and excludes any authority or regulation by a state; yet subsequently refuses to act in that area. The Court calls this argument indisputable. “[T]he Government has abandoned its duty to enforce the law,” the Court states. The Court drops the hammer: “If one had to formulate from scratch a fact pattern that exemplified the existence of standing due to federal abdication, one could not have crafted a better scenario.”
Next, the Court turns to the question of prosecutorial discretion. The Court explains that prosecutorial discretion is the purview of the executive branch, but that the DAPA program is not discretion at all. Under the Administrative Procedure Act, the Court points out, there has been no rule promulgated that meets the requirements of notice and hearing. The Court states, “The responsibility of the federal government, who exercises plenary power over immigration, includes not only the passage of rational legislation, but also the enforcement of those laws. The States and their residents are entitled to nothing less.” The Court also says that this is not a question of merely federal inaction, but “affirmative action rather than inaction….Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits.” Most tellingly, the Court quotes President Obama himself stating that he instructed the Department of Homeland Security to “change the law.” The Court then concludes:
While the Government would not totally concede this point in oral argument, the logical end point of its argument is that the DHS, solely pursuant to its implied authority and general statutory enforcement authority, could have made DAPA applicable to all 11.3 million immigrants estimated to be in the country illegally. This Court finds that the discretion given to the DHS Secretary is not unlimited.
In a final slap, the Court states, “In the instant case, the DHS is tasked with the duty of removing illegal aliens. Congress has provided that it ‘shall’ do this. Nowhere has Congress given it the option to either deport these individuals or give them legal presence and work permits.”
The Court also calls out President Obama directly for contending publicly that he changed the law, then sending his lawyers to claim that DAPA is supposed to be advisory in nature. The Court then states that the only “discretion” used has “already [been] exercised by Secretary Johnson in enacting the DAPA program and establishing the criteria therein.” The Court concludes, “The DAPA program clearly represents a substantive change in immigration policy…it contradicts the INA. It is, in effect, a new law.”
The Court issued an injunction in this case because, as Judge Hanan writes, “legalizing the presence of millions of people is a ‘virtually irreversible’ action once taken,” both in terms of cost, and in terms of the presence of the illegal aliens themselves. “Once Defendants make such determinations,” the Court writes, “the States accurately allege that it will be difficult or even impossible for anyone to ‘unscramble the egg.’….This genie would be impossible to put back into the bottle.” The Court points out that the status quo ante would not be changed by striking down the regulation; we would merely have the clarity of knowing whether the government has the authority for DAPA before it is implemented.
In short, the Court eviscerates the Obama administration’s position. The case will be appealed to the Fifth Circuit, but Judge Hanan’s heavy reliance on Fifth Circuit case law makes it unlikely to be reversed at that level. The injunction means that the case will expedite to the Supreme Court level. Now the question becomes whether the lawless Obama administration will obey the judge’s ruling even though the injunction has been granted.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the new book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). He is also Editor-in-Chief of TruthRevolt.org. Follow Ben Shapiro on Twitter @benshapiro.