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Fed Judge: Obama DREAM policy illegal, but ICE agents can’t sue

Fed Judge: Obama DREAM policy illegal, but ICE agents can’t sue

For now at least, Obama’s illegal DREAM policy lives on.

We previously wrote about the decision of Judge Reed O’Connor in the Northern District of Texas, who found that the Obama administration’s DREAM order, which directed Homeland Security not to commence removal proceedings as to people who meet the criteria, were illegal:

One of the defenses raised by the government belatedly, as to which the judge had deferred decision, was whether the plaintiff ICE agents could bring suit or were bound to commence administrative proceedings only due to the Collective Bargaining Agreement and the Civil Service Reform Act (“CSRA”).  The court, argued the government, lacked jurisdiction because of CSRA.

In an Order issued July 31 (full embed at bottom of post), the Judge agreed with the government on the jurisdiction issue, finding that although the government violated the law, these plaintiffs could not bring suit and the court therefore lacked subject matter jurisdiction over the plaintiffs’ claims.  The Court dismissed the case “without prejudice,” meaning that the dismissal was not binding and that some person not bound by CSRA could raise the same issues as to which the Court found illegality (emphasis in original, footnotes omitted):

In its previous Order, the Court found that Congress’s use of the word “shall” in Section 1225(b)(2)(A) of the Immigration and Nationality Act imposes a mandatory obligation on immigration officers to initiate removal proceedings against aliens they encounter who are not “clearly and beyond a doubt entitled to be admitted.” ….

Therefore, the Court concluded that Plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate. However, the Court finds that Congress has precluded Plaintiffs from pursuing their claims in this Court by enacting the
CSRA. Therefore, the Court finds that this case should be and is hereby DISMISSED without prejudice for lack of subject-matter jurisdiction….

Plaintiffs—federal employees—assert claims against the federal government based on retaliatory acts, or threats thereof, taken by their supervisors. Although they bring their dispute pursuant to the United States Constitution and the Administrative Procedure Act, their claims are based on their challenge to the Deferred Action for Childhood Arrivals program after Plaintiffs’ noncompliance with the program led to the threat of workplace disciplinary action against them. The above-referenced authorities command that this dispute be governed by the CSRA’s comprehensive and exclusive remedial scheme provided by Congress. Therefore, this Court does not have subject matter jurisdiction to address Plaintiffs’ claims. While the Court finds that Plaintiffs are likely to succeed on the merits of their claim challenging the Directive and Morton Memorandum as contrary to the provisions of the Immigration and Nationality Act, see generally Mem. Op. & Order, Apr. 23, 2013, ECF No. 58, Congress has determined that this Court does not have jurisdiction over Plaintiffs’ disputes. As a result, the Court must dismiss Plaintiffs’ claims without prejudice.

This was an ugly victory for the Obama administration. A federal judge found it violated the law, but could not rule on jurisdictional grounds. But winning ugly is still winning, and for now at least, Obama’s illegal DREAM policy lives on.

Obama Non-Deportation Case – Crane v. Napolitano – Order Dismissing Case


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So although the Obama Administration’s actions are illegal not to enforce the law, there isn’t a way to force the administration to enforce the law? Once again border security and control is as much a state sovereignty issue as it is a federal powers issue.

    Observer in reply to McCoy2k. | August 2, 2013 at 8:27 am

    Perhaps the states are the ones who should be the plaintiffs in the lawsuit. States like AZ and Texas bear an enormous financial burden from the federal government’s refusal to enforce U.S. immigration laws. In addition to the costs of providing education, health care, and other services to illegals, the citizens of border states are also subjected to increased crime. The Obama administration’s insistence on treating U.S. immigration laws as a joke is the reason why Phoenix has become the #2 city for kidnappings in the world, and why AZ is the #1 state in the country for identity theft.

    The states, and/or the individual taxpayers who reside in the states, are suffering demonstrable harm from this administration’s refusal to enforce the law. If anyone has standing to sue over this outrage, it should be them.

      Milhouse in reply to Observer. | August 2, 2013 at 3:58 pm

      It’s already been tried several times. The states have no standing; it’s none of their business how the USA enforces its laws. That’s why this case was so important — these ICE agents were probably the only people in the world with standing to challenge these illegal orders. But they have to bring their case through the procedures that Congress laid down for civil service disputes. Which means acting through their union, which is in 0bama’s pocket. The decision is, unfortunately, undoubtedly correct; but it means 0bama gets to thumb his nose at the law and nobody can do anything about it.

    RickCaird in reply to McCoy2k. | August 2, 2013 at 7:56 pm

    It is turning out that Obama can do whatever he wants because no one has standing to stop him. It is hard to see how the Constitution has not been lost.

This administration’s complete and utter disregard for little things like ‘separation of powers’ and ‘the law’ and ‘Congress’ is pretty damn scary.

3 1/2 more years of this crap to go. How much more damage will he and they do ?

He’s discovered a magic formula – ignore Congress, have his DOJ and AG simply refuse to enforce laws he doesn’t like, then claim in court that ‘no one has standing to complain’.

Chicago style writ large. Very reminiscent of how he won his first election – by getting all the other candidates thrown of the ballot on technicalities, including the incumbent.

What an innovative way to keep breaking the law!

See: “Teapot Dome”, Edward L.Doheny, Albert B. Fall

Neither precedent nor the law mean anything to people like this. They just make it up as they go along to suit their needs.

That’s how fascism takes root.

Juba Doobai! | August 2, 2013 at 2:42 am

Against the law but don’t uphold the law. Even the judges are lawless in Obama’s America. I want us to deport every single last illegal alien. No amnesty, no free tuition, no protest marches. Deport them and their offspring, born here or not. You don’t break the law and benefit from it.

    Milhouse in reply to Juba Doobai!. | August 2, 2013 at 4:00 pm

    Deport them and their offspring, born here or not.

    Um, anybody born here is a US citizen, and it’s every bit as much his country as yours. By what right would you deport them? Why shouldn’t they deport you instead?

      Juba Doobai! in reply to Milhouse. | August 2, 2013 at 7:17 pm

      My family came here legally. I was not an anchor baby born for the purpose of ensuring the entire family remained in the USA. since the family is here against the law, illegally, how can the offspring be anything but illegal? The family has no legal right to be here, how can the child born have such a right when the family was breaking American law? I move into your house and give birth to a child while in unlawful possession. Is the child your heir? Is the child to be a beneficiary of my illegality? That is the crux of the matter. Obama takes so much from the Chinese that I would suggest he takes the Chinese attitude towards babies born of those legally in the country: they are not citizens of China but are citizens of the country of their parents’ birth.

      If we continue letting all these illegals come in here, have babies and claim citizenship, pretty soon these illegals and their offspring will be voting themselves the kind of America they want and we citizens, outnumbered, will be aliens in our own land.

So, just who DOES have standing to sue on this?
And by the time they get to this point in the process, “what difference will it make?”

Scariest of all is the hogging of the GOP leadership positions by corrupt cowards unwilling to fight for our liberty, and very willing to harm anyone in the GOP who tries.

Collectively, we are a bunch of jackasses for allowing this situation to continue to exist, and for not LOUDLY abandoning the GOP for the Tea Party.

Justice Roberts used tenuous technicalities to decide Hollingsworth v Perry (CA Gay Marriage) and Obamacare (National Federation of Independent Businesses v Sebelius).

Sadly, it seems that Roberts is starting a trend for cases with political overtones.

By the way Justice Roberts, if the individual mandate is unconstitutional (as you found), then a tax penalty to enforce such a mandate is also unconstitutional.

    Milhouse in reply to sequester. | August 2, 2013 at 4:03 pm

    A penalty would indeed be unconstitutional. A tax is obviously not. Congress does have the taxing power, after all.

      sequester in reply to Milhouse. | August 2, 2013 at 6:19 pm

      Congress has limited taxing authority. It can lay direct taxes, duties, imposts and excise taxes. The Constitution did not permit income taxes until the 16th Amendment was approved.

      The Obamacare “tax” is a penalty for not purchasing insurance as provided by law:

      …The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.

      Since the mandate was found unconstitutional a penalty or tax to enforce that mandate must also fail.

      Roberts never argues that the penalty is an income tax. He refers to it as a penalty. Although the penalty is a direct tax Roberts speciously argues

      A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents

      For the penalty easily fails constitutional muster as a direct tax. Direct taxes unlike income taxes must be apportioned in accordance with the census. So Roberts is left to anemically argue that the penalty is a tax to enforce an unconstitutional mandate.

      CHIEF JUSTICE ROBERTS concluded in III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause… Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

[…] blog of the day is Legal Insurrection, with a post noting that Obama’s DREAM policy is […]

I have never understood how federal government workers can form a union? That blows my mind. When I worked for the US Fish & Wildlife Service, I was barred from organizing for or joining a union by a signed statement. How can these other various agencies be union? Unionizing against American taxpayers?

    Rick the Curmudgeon in reply to captainfish. | August 3, 2013 at 4:03 pm

    The same way the government can bar the military from unionizing.

    1975-ish, there was a lot of discontent in the military re: pay and benefits and consequently a lot of talk about unionizing a la some of the European military. (The Dutch army IIRC.)

    Congress reacted to our pay and benefits grumbles with lightning speed… by outlawing unions for our military.

Rick the Curmudgeon | August 3, 2013 at 4:04 pm

Oh. Forgot.
As regards federal employees unions, you can thank St. John of Hyannisport for that one.

[…] that he would not enforce the law for certain categories of illegal immigrants), a federal judge has ruled that Obama’s policy is illegal, but the plaintiff had no standing to sue. Consequently, the […]