Congressional Republicans have no good options to block President Barack Obama’s executive actions on immigration, but a federal lawsuit by 18 GOP states poses a real danger to the president’s move to grant deportation relief and three-year work permits for upwards of 4 million people, legal experts say.
The lawsuit is led by Texas Attorney General (and Gov.-elect) Greg Abbott and joined by 17 other Republican states. They ask for an immediate injunction to stop administration officials from moving forward; if they succeed, the actions may be halted before they can begin taking applications, which the White House expects to start doing this spring.
Legal experts say the lawsuit is flawed on questions of “standing,” which requires proof of a tangible injury to the suing party; and on the merits, where longstanding legal precedent grants the executive branch a huge amount of discretion when it comes to enforcing immigration laws.
But in a calculated move, the Republicans landed the case before their dream judge: Andrew S. Hanen of Texas, appointed by George H.W. Bush. Hanen has fiercely criticized the Obama administration where it has shown mercy on immigration enforcement. In a December 2013 order, he said the Department of Homeland Security “assisted” a criminal conspiracy by failing to prosecute or deport a woman who had her 10-year-old daughter smuggled into the United States illegally. (The smuggler was prosecuted and plead guilty.)
“This DHS policy is a dangerous course of action,” Hanen wrote in U.S. v. Nava-Martinez. “The DHS, instead of enforcing our border security laws, actually assisted the criminal conspiracy in achieving its illegal goals. … The DHS has simply chosen not to enforce the United States’ border security laws.”
Jonathan Weinberg, a law professor at Wayne State University, dubbed Abbott’s move “a classic exercise of what lawyers call judge-shopping.” He said the Republicans will probably win the case, at least at the district court, even though he says their standing claims are “shaky” and merit claims are “simply wrong.”
“Judge Hanen has for all practical purposes already decided the standing question, and he makes it clear where his sympathies lie on the merits question. Given all that, it’s real likely that Texas will prevail,” Weinberg said. “Any appeal will be to the Fifth Circuit [Court of Appeals], which has ten Republican-appointed judges in active service and five Democratic-appointed ones.”
Texas Attorney General Greg Abbott (AP Photo/The McAllen Monitor, Joel Martinez)
If Hanen grants an immediate injunction, the administration could ask the Fifth Circuit — a very conservative federal appeals court, which is also hostile to Obama — or the Supreme Court to lift the injunction while the case is decided on the merits.
“The notable thing about his opinion was that his language was very inflammatory and seems to be more politicized than you would normally get in a judicial opinion,” said Stephen H. Legomsky, a professor at Washington University Law.
Gregory Siskind, an immigration lawyer based in Memphis, said the Republicans “probably got about as sympathetic a judge as they’re going to get. … I’d be a little surprised if he has the final judgement and his ruling doesn’t go unchallenged.” If the administration loses, he said, “they would probably go right to the Fifth Circuit to get them to basically stay the judge’s order.”
Legomsky said there’s a good chance the Fifth Circuit would overturn a hypothetical injunction and find a lack of standing for Texas.
If a potential injunction by Hanen is not lifted by the Fifth Circuit or Supreme Court, the Obama administration would likely have no choice but to halt its actions while it appeals the case on the merits, Weinberg and Legomsky said.
The legal claims against the Obama administration are weak, say more than 100 immigration legal scholars (including conservatives). Past presidents including George H.W. Bush and Ronald Reagan exempted certain categories of undocumented immigrants for deportation relief and work permits under the legal theory of prosecutorial discretion — a president doesn’t have the resources to target every offender, so he must prioritize. The executive branch says it only has the resources to annually deport some 400,000 of the estimated 11.3 million people in the country illegally, and must focus on deporting the most dangerous ones.
Obama’s executive actions include expanding the 2012 Deferred Action For Childhood Arrivals and creating a new program called Deferred Action for Parental Accountability (DAPA), which will let some 4 million parents of American citizens who haven’t committed crimes temporary stay and work in the country.
Texas attempts to achieve standing by arguing that DAPA will harm the state by making immigrants who are given relief less likely to self-deport, entitle them to some benefits (thus raising Texas’ budgetary costs) and encourage more illegal immigration to the state.
Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, and Associate Justice Ruth Bader Ginsburg. (AP Photo/Pablo Martinez Monsivais)
When it comes to the merits, the Republicans may have a tough time at the Supreme Court, should the case eventually reach there. Legomsky pointed to two Supreme Court cases — both cited in the Obama administration’s legal memo justifying the actions — Chaney v. Heckler and Arizona v. U.S. as examples of the “very broad prosecutorial discretion” that the executive branch has on the issue of immigration.
In 2012, Justice Anthony Kennedy wrote in Arizona v. U.S., “Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.” His 5-3 majority opinion was joined by Chief Justice John Roberts.
The White House sounded a note of confidence that the lawsuit would fail.
“The Supreme Court and Congress have made clear that federal officials can set priorities in enforcing our immigration laws,” White House spokeswoman Brandi Hoffine said, “and we are confident that the President’s executive actions are well within his legal authorities.”