Thursday, February 19, 2015

Federal Judge Temporarily Blocks Obama's Immigration Plans

Earlier this week on Monday, a federal judge in the Southern District of Texas issued an order in the case of State of Texas, et al., v. United States which pushes the pause button on the Obama Administration's plans to use the prosecutorial discretion of the executive branch (namely, the Department of Homeland Security) in order to implement the "Deferred Action for Parents of Americans and Lawful Permanent Residents" program ("DAPA").  Although not at issue in this case, the injunction also temporarily prevents the Obama Administration from implementing the Deferred Action for Childhood Arrivals program ("DACA").  These are programs aimed at giving relief to undocumented immigrants who arrived in this country as children, as well as relief to their parents.  All told, the programs were estimated to affect approximately 4-5 million people living here in the United States. 

The question squarely before the district court was this:

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?

Joined by 25 other states, the state of Texas sued the federal government to resolve this question in the negative.  The Obama Administration, on the other hand, argued that the Department of Homeland Security has the discretion to implement these programs.  The federal judge in Texas, Judge Andrew Hanen, held that:
The law is clear that the Secretary[] [of Homeland Security's] ordering of DHS priorities is not subject to judicial second-guessing . . . Further, as a general principle, the decision to prosecute or not prosecute an individual is, with narrow exceptions, a decision that is left to the Executive Branch's discretion . . . The Judiciary has generally refrained from injecting itself into decisions involving the exercise of prosecutorial discretion or agency non-enforcement for three main reasons.  First, these decisions ordinarily involve matters particularly within an agency's expertise.  Second, an agency's refusal to act does not involve that agency's "coercive" powers requiring protection by the courts.  Finally, an agency's refusal to act largely mirrors a prosecutor's decision to not indict . . . Consequently, this Court finds that Secretary Johnson's decisions as to how to marshal DHS resources, how to best utilize DHS manpower, and where to concentrate its activities are discretionary decisions solely within the purview of the Executive Branch, to the extent that they do not violate any statute or the Constitution . . . however . . . Plaintiffs argue that DAPA is not within the Executive's realm (his power to exercise prosecutorial discretion or otherwise) at all; according to Plaintiffs, DAPA is simply the Executive Branch legislating . . . Just as the states are preempted from interfering with the "careful balance struck by Congress with respect to unauthorized employment," for example, Plaintiffs argue that the doctrine of separation of powers likewise precludes the Executive Branch from undoing this careful balance by granting legal presence together with related benefits to over four million individuals who are illegally in the country.  It is the contention of the States that in enacting DAPA, the DHS has not only abandoned its duty to enforce the laws as Congress has written them, but it has also enacted "legislation" contrary to the Constitution and the separation of powers therein.

Opinion at pp. 69-71.

Judge Hanen resolved this question as follows:

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 (fn: Congress exercises plenary power over immigration and the Executive Branch is charged with enforcing Congress' laws) . . .  While agency "non-enforcement" might imply "inaction" in most circumstances, the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as "non-enforcement," it is actually affirmative action rather than inaction . . . Instead of merely refusing to enforce [federal immigration law] against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as to the ability to obtain Social Security numbers, work authorization permits, and the ability to travel . . . The Court finds that Plaintiffs' injuries cannot be redressed through judicial remedy after a hearing on the merits and thus that a preliminary injunction is necessary to preserve the status quo in this case . . . In this order, the Court is specifically not addressing Plaintiff's likelihood of success on their substantive [legal] claim or their constitutional claims under the Take Care Clause/separation of powers doctrine.
Opinion at pp. 81-121.

Now, in case you don't speak legalese, what the Judge is saying here in plain English is that he is not making an official ruling on whether or not 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.  He's punting on that issue.  What he is saying, however, is that he finds enough merit in the States' argument to issue a preliminary injunction to delay DAPA (and consequently, delay DACA as well) for now. 

So what happens now?  Since the judge here is a federal judge at the district court level (the lowest of the 3 levels) this is only the beginning of this battle.  The next step will be an appeal of this decision to the federal appellate court (the 5th Circuit Court of Appeals) and, ultimately, on to the Supreme Court of the United States.  This process can take years.  If you recall, the first of the district court challenges against ObamaCare came about in March 2010 and the Supreme Court did not issue its ruling on those cases until June of 2012.  So we've got some time.  In the meanwhile, the most immediate decision will come from the Court of Appeals as to whether or not the preliminary injunction should be lifted.  That will not be a ruling on the merits of DAPA, but just as to whether or not the Department of Homeland Security should be able to move forward with the program while the courts pass judgment on its constitutionality.  That will likely happen sometime over the next few months.

As far as the merits of what the Department of Homeland Security is or is not doing here, I think the judge started off correctly by noting that matters of prosecutorial discretion are typically not reviewable by the courts, and for good reason.  The separation of powers doctrine recognizes that each of the 3 branches of government has autonomy within its respective universe. In this case, the Department of Homeland Security has made the choice, as is its right, to prioritize who it will or won't deport.  Some people do not agree with that choice, but that still doesn't change the fact that this choice falls within the Department's purview so long as it doesn't violate the laws set out by Congress, which it doesn't.  I also find the judge's analysis a bit wanting where he recognizes that a prosecutor has the discretion to not prosecute, but then reverses himself by saying that this situation is different because the prosecutor's decision not to prosecute will have undesirable consequences.  A prosecutor's decision not to prosecute always has undesirable consequences.  This case is no different in that regard. 

So my prediction is that the injunction is probably kept in place by the 5th Circcuit but that the States ultimately lose this one on the merits due to prosecutorial discretion.  In other words, the States cannot force the federal government to actually do something.

Your thoughts?

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