Late Monday, a federal district court judge in Brownsville, Texas, granted an injunction against two of President Obama’s much-discussed immigration initiatives, temporarily blocking them while legal proceedings are pending.
The lawsuit was initially filed in early December 2014 by the state of Texas and was subsequently joined by 25 other states. The plaintiffs argue that President Obama’s immigration programs are “politically motivated and implemented illegally,” and focus on three main arguments.
First, they argue that the President has previously said that he lacks authority for such programs, and that only Congress could enact such broad-sweeping changes in policy. They also believe that the programs are a “significant change in immigration law,” and therefore can only be enacted by the legislatively by Congress – not through executive action.
And finally, the plaintiffs say that the president, by electing not to deport some undocumented immigrants, has breached his constitutional duty to “take care that the laws be faithfully executed.”
The states’ argument has garnered wide support from Congressional Republicans within the House of Representatives, who filed an amicus brief in support of the states signed by 65 members, as well as three Senators.
The order temporarily blocks a program called “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), which would affect approximately four to five million undocumented individuals currently in the United States.
The program permits people to seek deferred deportation if have been in the country since 2010; aren’t considered an enforcement priority, and have a child that is a U.S. citizen or permanent resident.
The order also blocks the expansion of another program, “Deferred Action for Childhood Arrivals” (DACA), which provides deferred deportation status to those who were under 31 years of age on June 15, 2012; entered the U.S. at least five years prior to that date and were under age 16 at the time of entry; and meet specified academic and employment criteria.
Judge Hanen, who issued the order, was appointed by President George W. Bush and has been an outspoken critic of President Obama’s immigration policies. In his decision, he noted that “there is no indication that these individuals will be removed or prosecuted” as a result of blocking DAPA, while “there may be dire consequences for [the undocumented immigrants] if DAPA is later found unconstitutional.”
In previous immigration cases, the judge has relied on his “first-hand, in-the-trenches knowledge of the border situation” in arguing for stricter immigration policies. Brownsville, Texas, where Judge Hanen sits, is located on the border with Mexico.
The legal doctrines at play in Judge Hanen’s order are principally procedural. In granting the states’ request for an injunction, he notes that the states satisfy the requirements of standing, a constitutional bar that plaintiffs must meet to get into court; that the Department of Homeland Security (DHS) had violated the notice-and-comment requirements of the Administrative Procedure Act (APA), a statute setting out the procedures by which federal agencies can promulgate rules, in setting out DAPA and the expanded DACA; and that the decision not to deport did not fall within the federal government’s broad “prosecutorial discretion,” meaning its authority not to exercise a power such as deportation.
In the New York Times, constitutional scholar and Harvard Law professor Laurence Tribe decried the order, stating, “Federal supremacy with respect to immigration matters makes the states a kind of interloper in disputes between the president and Congress.” He also noted that the President’s past statements about lacking authority were irrelevant: “All of that is interesting political rhetoric,” Tribe said, “but it has nothing to do with whether states have standing and nothing to do with the law.”
Texas Attorney General Ken Paxon said he was vindicated by the order, stating in The Wall Street Journal, “This injunction makes it clear that the president is not a law unto himself, and must work with our elected leaders in Congress and satisfy the courts in a fashion our Founding Fathers envisioned.”
Injunctions are by definition temporary, and the long-term outcome of Judge Hanen’s order is unclear. While he strongly suggests that he, personally, would find the government’s action unconstitutional, Judge Hanen is careful to state that he makes no definite statement as to the states’ substantive claims, focusing instead on procedural issues such as standing and prosecutorial discretion.
Ultimately these and the other issues raised by the states are likely to be decided at the appellate or Supreme Court level. For now, the injunction leaves President Obama’s executive actions and the millions they would affect in a state of profound uncertainty.
Tyler Anger is a pro bono intern at the National Constitution Center. He is also a student at the University of Pennsylvania Law School.
