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Texas Federal Court Enjoins Obama Immigration Executive Action

Texas Federal Court Enjoins Obama Immigration Executive Action

Issues Temporary Injunctive Order — Is this a way out for Republicans on DHS funding

In a decision which is to have a profound impact on both the immigration debate and the currently stalled funding of the Department of Homeland Security, a federal court judge in Texas has issued a Temporary Restraining Injunctive Order preventing implementation of Obama’s Immigration executive action. The Order and 123-page Opinion are embedded in full below.

From a political perspective, if Obama is enjoined from enforcing his immigration executive action, how can Congress fund an illegal act? Or if it were funded, thereby relieving the current continuing resolution stalemate, Obama could not enforce it. Either way, this may provide Congress a way out of the jam just days before the funding deadline.

What this allows Republicans to do, is pass a 30 day spending bill without any limitations on the argument that the immigration plan cannot be acted upon anyway, and wait and see how the courts rule. IF the courts refuse to put the injunction on hold, or if the courts uphold the injunction on the merits, then there is no need to worry about defunding the executive action. If an appeals court reverses, then the Republican leadership can say that it has already been upheld as lawful so there is no legal basis for the claim it is unconstitutional. This could be a victory at least to get over the current impasse, although it may not be a long term solution.

The case involves 26 states (originally 17) led by Texas.

Here is part of the TRO:

The United States of America, its departments, agencies, officers, agents and employees and Jeh Johnson, Secretary of the Department of Homeland Security; R. Gil Kerlikowske, Commissioner of United States Customs and Border Protection; Ronald D. Vitiello, Deputy Chief of United States Border Patrol, United States Customs and Border Protection; Thomas S. Winkowski, Acting Director of United States Immigration and Customs Enforcement; and Leon Rodriguez, Director of United States Citizenship and Immigration Services are hereby enjoined from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAP A”) program as set out in the Secretary of Homeland Security Jeh Johnson’s memorandum dated November 20, 2014 (“DAPA memorandum”), pending a final resolution of the merits of this case or until a further order of this Court, the United States Court of Appeals for the Fifth Circuit or the United States Supreme Court.

The Court frames the issue in the case as follows:

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? [Opinion, at 4]

It took the court over 100 pages to get to the answer: No.

The Court rejected that the immigration action was mere prosecutorial discretion, since the action bestowed benefits upon illegal aliens not provided by law:

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also
entail bestowing benefits. Non-enforcement is just that-not enforcing the law.67 Nonenforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations. This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such “non-enforcement” decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual. [Opinion, at 87]

The Court also found, as I have long argued, that this was not the mere exercise of discretion in implementing existing law:

The Government has pointed this Court to no law that gives the DHS such wide-reaching discretion to turn 4.3 million individuals from one day being illegally in the country to the next day having lawful presence.

The DHS’ job is to enforce the laws Congress passes and the President signs (or at least does not veto). It has broad discretion to utilize when it is enforcing a law. Nevertheless, no statute gives the DHS the discretion it is trying to exercise here. 77 Thus, Defendants are without express authority to do so by law, especially since by Congressional Act, the DAPA recipients are illegally present in this country. As stated before, most, if not all, fall into one of two categories. They either illegally entered the country, or they entered legally and then overstayed their permission to stay. Under current law, regardless of the genesis of their illegality, the Government is charged with the duty of removing them. [Opinion, at 96]

DHS was effectively changing the law:

While DAP A does not provide legal permanent residency, it certainly provides a legal benefit in the form of legal presence (plus all that it entails )-a benefit not otherwise available in immigration laws. [Opinion, at 110]

The DAP A program clearly represents a substantive change in immigration policy. It is a program instituted to give a certain, newly-adopted class of 4.3 million illegal immigrants not only “legal presence” in the United States, but also the right to work legally and the right to receive a myriad of governmental benefits to which they would not otherwise be entitled. 102 It does more than “supplement” the statute; if anything, it contradicts the INA. It is, in effect, a new law. DAPA turns its beneficiaries’ illegal status (whether resulting from an illegal entry or from illegally overstaying a lawful entry) into a legal presence. It represents a massive change in immigration practice, and will have a significant effect on, not only illegally-present immigrants,but also the nation’s entire immigration scheme and the states who must bear the lion’s share of its consequences. [Opinion, at 111]

The court rejected the argument, which we hear frequently in the media, that past presidential actions somehow could be used to justify Obama’s conduct, essentially holding that two wrongs don’t make a right:

Defendants argue that historical precedent of Executive-granted deferred action justifies DAPA as a lawful exercise of discretion. In response, the Plaintiffs go to great lengths to distinguish past deferred action programs from the current one, claiming each program in the past was substantially smaller in scope. The Court need not decide the similarities or differences between this action and past ones, however, because past Executive practice does not bear directly on the legality of what is now before the Court. Past action previously taken by the DHS does not make its current action lawful. [Opinion, at 100]

One interesting footnote — literally a footnote (no. 2) is on terminology:

The Court uses the phrases “illegal immigrant” and “illegal alien” interchangeably. The word “immigrant” is not used in the manner in which it is defined in Title 8 of the United States Code unless it is so designated. The Court also understands that there is a certain segment of the population that finds the phrase “illegal alien” offensive. The Court uses this term because it is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law. See Arizona v. United States, 132 S. Ct. 2492, 2497 (2012).


Texas v. U.S. – Immigration Case – Temporary Injunction

Texas v. U.S. – Immigration Case – Opinion


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“Fasten your seat belts, it’s going to be a bumpy ride!”

Thank God for both Greg Abbott and Rick Perry. Texas has a remarkable record of federal court victories in combating Team Obama’s “mi casa es tu casa” policies

    Now the question is, will Obama follow the court’s ruling or, as is his wont, ignore them.

    GrumpyOne in reply to Howard Roark. | February 17, 2015 at 9:12 pm

    Gregg Abbott yes, Perry… No so much.

    Mr. Abbott is a hundred times the man that Perry claims to be and I have faith that he will continue to watch out for all Texans regarding this matter.

    Perry OTOH is responsible for the State’s dream act, failure to mandate E-Verify state wide or punish sanctuary cities etc.

    All talk and no cattle does not make the case…

Ok, having now read the lengthy opinion, the Court found only that DHS violated the procedural requirements of the APA by not putting its rules out for public comment prior to implementing them. This was the narrowest ground on which it could rule, and it means the Feds can cure the procedural violation by proposing this program as an administrative rule and soliciting public comment. The court specifically declined to address Texas’ claims that the program substantively violated the APA and/or was substantively unconstitutional. So, a win for Texas, but not quite the sweeping win Texas may have been hoping for.

    Ridiculous. Do you not see the many (many, many) opinions noted in the TRO? This action by Obama is so illegal that it enters fantasy territory. Whether by letter or intent, it is so, so wrong.

      Awing1 in reply to cordycord. | February 17, 2015 at 3:02 pm

      The TRO itself only cites two opinions, Kaepa, Inc. v. Achilles Corp. and Corrigan Dispatch Co. v. Casa Guzman, S.A., both are Fifth Circuit opinions dealing with the technical standards for injunctions.

      From the TRO itself: “The reasons for this injunction are set out in detail in the Accompanying Memorandum Opinion and Order, but, to summarize, it is due to the failure of the Defendants to comply with the Administrative Procedure Act.”

      Are you saying the court doesn’t understand its own reasoning?

      Awing1 in reply to cordycord. | February 17, 2015 at 3:13 pm

      In addition, from page 121 of the Opinion and Order that supports the TRO (actually a temporary injunction):

      “In this order, the Court is specifically not addressing Plaintiffs’ likelihood of success on their substantive APA claim or their constitutional claims under the Take Care Clause/separation of powers doctrine.”

      I find it funny that your blatant misstatement has been so wildly upvoted, and the accurate statement you responded to so downvoted. Sad state of affairs.

    Could not the Plaintiffs drag the hearing process out beyond January, 2017, rendering Obama’s action mute?

I applaud the judge but when has obama ever bothered to obey any law that he disagrees with? I think this may give Congress a little breathing room but not much else. I think the ruling that will work will be a high court’s interpretation of the immigration laws and the powers of the DHS. obama can’t tell Johnson to do something within the law that is unconstitutional.

    Three things:

    1. If a 30 day bill passes Congress, it is in Obama’s interest to veto it. The GOPe Congress will fold.

    2. Obama will double down on his illegal actions and increase them. The GOPe will fold; the Judicial branch will be too slow and impotent to stop Obama and lacks the power to impeach him.

    3. Does this throw a monkey wrench into the GOPe plans for forcing amnesty on the country ? I don’t see it; they need only be patient and screw over the country later; what am I not seeing?

    Well, one thing that this ruling does is give the states reasonable cover for arresting any DHS functionary that doesn’t obey it.

    Why does Congress need the courts to give them “a little breathing room”? They run the country, for crying out loud. If they weren’t afraid of their own shadows we would not be in this mess.

Reconciliation baby. Deem and pass! McConnell has the cover he needs.

FOX said while the judge ruled on the narrow part, he said he needed more time on the other parts.

Of course he is judging against a major action by our president, so more time seems reasonable. But the parts quoted above indicate clearly he judges that Obama is not just showing discretion via non-enforcement, he is changing illegal to legal, at great burden to the states.

Obama breaks the law routinely but he at least has lawyers come up with legal argument. In this case he would be going directly against a court order.

A judge broke one of Obama’s oil drilling moratoriums in ~2009, and Obama just issued a separate moratorium (iirc). But he can’t pull that trick here. It seems this surely stops Obama dead in his tracks, as far as issuing legal documents against the court’s direct judgement. (ianal)

    The judge hinted pretty clearly to both sides that he wanted to see more facts. He thought he had seen enough for the TRO to be granted on the grounds stated, but I’m guessing the record in this case is going to be voluminous before it’s all over.

I read it’s a Preliminary Injunction, not a Temporary Restraining Order. The latter apparently lapses after 14 days while the former remains in effect until legal action either upholds or overturns it.

For you Legal Eagles, is that true?

    wyntre in reply to wyntre. | February 17, 2015 at 9:25 am

    Here’s the info from HotAir:

    Update: The court issued a preliminary injunction, not a temporary restraining order. A PI sustains itself until overturned or mooted by a later court ruling. Thanks to commenter blammm for the correction.

    platypus in reply to wyntre. | February 17, 2015 at 12:22 pm

    The notion that a TRO lasts only 14 days is partially correct. A TRO is generally issued ex parte, and a show cause return date hearing scheduled within fourteen days to give the restrained party an opportunity to be heard. Most TROs are renewed at the 14 day hearing, primarily because the initial court is presumed to have weighed the merits of the application and found them sufficient. In rare cases, the restrained party makes a sufficient showing that the harm is not certain or irreparable.

    The order in question is a preliminary injunction. It cannot be altered without a hearing showing that its continued operation causes harm due to changed circumstances. Setting the APA process in motion does not affect the premise of the injunction, at least until the process was completed. At that time, the defendants would have to overcome the factual findings made when the order was entered. That is extremely unlikely. So the injunction would stand until trial.

    pdxnag in reply to wyntre. | February 17, 2015 at 12:31 pm

    Conclusion section at last page: “hereby grants Plaintiff States’ request for a preliminary injunction.”

“This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such “non-enforcement” decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual.”

Is he holding the Supreme Court’s feet to the fire here?

    platypus in reply to betty. | February 17, 2015 at 12:26 pm

    Nope. Having read 45 of the 123 pages, I’d say that he threw them head over heels into the fire. And justifiably so.

I haven’t read the entire decision yet, but congressmen should not rely upon the courts as a substitute for fulfilling their oaths and duty as Americans.

As far as the illegal alien versus “immigrant” footnote, it’s offensive. The law defines these terms, and political correctness has no place in a judicial opinion. America is not a suicide pact; we have no obligation to accept foreigners and show concern for their feelings, as they spit at us, and demand everything we have.

Congress needs to carry on; they need to defund. Obama is lawless, and every restraint possible is needed.

    Sammy Finkelman in reply to Karen Sacandy. | February 17, 2015 at 1:11 pm

    >> Past action previously taken by the DHS does not make its current action lawful. [Opinion, at 100]

    It doesn’t make its past action legal.

    One of my co-workers is here on a green card. Her residence status is “Resident Alien”. She wore a green costume and deely-boppers on Halloween.

    The only people who are afraid to call things by their name are people who are trying to pull something over on you.

Humphrey's Executor | February 17, 2015 at 10:51 am

Per Wikipedia, the Fifth Circuit has 15 GOP appointees to 8 Dem appointees. Dem appointees faithfully back the current admin. GOP appointees are not so reliable.

    The Fifth has been historically good-to-great as our circuit courts go. Some of the best decisions in modern jurisprudence have come out of the Fifth, and they are not often reversed.

Obama doesn’t care if his EO lives or dies. It’s purpose was political, to get/keep hispanic votes in the D column, and simply having made the effort suffices. If his EO is upheld, welcome to America, new Democrat voters. If his EO goes down, Obama still keeps the good will of hispanics and can blame the failed EO on Republicans.

    Except, my dear Henry, that the average illegal alien does not want to come out of the shadows and those that do are unconcerned with anything but finding the welfare office (if not employed as a job thief).

    Sammy Finkelman in reply to Henry Hawkins. | February 17, 2015 at 1:08 pm

    What are you talking about???

    The real political crunch comes in the 2016 Presidential election, when the Republican candidate has to say whether or not he will continue the executive amnesty.

    Giving the Republican nominee the choice of losing many Hispanic, millenial, evangelical, farm and business votes, and greatly increasing turnout, or splitting the Republican party on this issue.

    I mean before when the Democrats scared people about Social Security or dangers to abortion or civil rights, they were lying but here they would be telling the truth! The Republicans would be shouting it from the rooftops! Or not, and getting some of the base angry.

    It’s very important to Obama and the Democratic Party that it lives, and that no act of Congress reslves this issue.

      2016 shouldn’t be any problem for the GOP. All they have to do is lie to the voters before the election and then do what the hell they want afterwards.

      You know, like they did to the tea party and the conservative base in 2014.

    Ragspierre in reply to Henry Hawkins. | February 17, 2015 at 2:18 pm

    Respectful disagreement, Henry.

    Barracula PLANS to follow the British model for changing the entire demographic of the nation. He fully intends that millions of illegal invaders be legitimized by any means available.

    This is part of his supercharged Cloward-Piven plan, which he has been working since BEFORE he was emacualted. He has BOTH crippled the SUPPLY side of our economy, AND exploded the DEMAND side of our national system.

    His Do(racial)J has been engaged in queering the vote and making sure it stays queered as one of its prime missions.

    It will seem monstrous to some, and too hard to comprehend, but it is reality.

      Henry Hawkins in reply to Ragspierre. | February 17, 2015 at 3:55 pm

      Diffs are never a problem, old son. However, I’ll stick with my notion that Obama does not give a shit either way, that he gets pol juice either way. He had many years to throw a bone to illegals and did not. Until he needs to. Like other Dem constituencies, illegals and hispanics are there to be milked, not helped, though the milking occasionally helps them incidentally.

        Ragspierre in reply to Henry Hawkins. | February 17, 2015 at 4:56 pm

        I agree with the notion there was no downside for Pres. ScamWOW, but there is certainly a HIGH up-side.

        He had to get past the 2012 election before fully selling out America and risking a full frontal violation of the Constitution. (I know, that was ugly…evoking that visual.) So he did. Now he’s dropped all the pretense except for goofing value.

        It’ll get worse from here.

Sammy Finkelman | February 17, 2015 at 1:01 pm

>> , if Obama is enjoined from enforcing his immigration executive action, how can Congress fund an illegal act?

That shows you that you – and most people – don’t know too much about the details about what’s going on here. It was in the news a few weeks ago, but you really have to follow this.

The point is:

Congress doesn’t need to fund it.

It’s funded by user fees. And does not depend on appropriations.

Some years ago, Congress decided it would be a nice idea for U.S. citizens not to pay for any immigration services. So they don’t, and funding for that is not included in the Homeland Security bill.

If the Homeland Security Bill does not pass, not much gets funded EXCEPT the executive amnesty. Most of the other functions of Homeland Security continue, except that no employees get paid.

What the House is attempting to do is CHANGE IMMIGRATION LAW and de-authorize any possibility of Obama doing what he did. They are not merely leaving something out. The Democrats want a ‘clean’ bill with no immigration provisions.

Could this give the Republicans a way out? You say they could pass a 30 day spending bill and wait and see how the courts rule. But nothing is supposed to happen anyway till May, and till now, neither side has been happy with the idea of short term extenstions.

If the judge’s order holds for a few days, the Republicans maybe can pretend to believe that the order will not be stayed, and remove all the immigration language from the Homeland Security bill, but that’s not very likely. It probably will be stayed on irreparable harm grounds, at least when the irreparable harm hits.

    Bruce Hayden in reply to Sammy Finkelman. | February 17, 2015 at 1:42 pm

    Why wouldn’t it stand? Apparently, the 5th Circuit is dominated by Republican appointees, and I don’t see this judge staying his own preliminary injunction. We shall see.

    I don’t see the President himself facing any harm at all, let alone legally cognizable irreparable harm. His interest is all politics.

    Is an illegal alien a party to the case, and are they willing to argue with a straight face that they are somehow entitled to immediate legal presence – so long as Obama and Johnson want to grant it?

    All spending needs to be authorized by the House.

      Sammy Finkelman in reply to ConradCA. | February 17, 2015 at 3:44 pm

      It (the power to issue various documents) was authorized some time ago. It does not need appropriations. It is funded by user (application) fees.

      What the House is trying to do is write new language de-authorizing it.

    Although a user fee is charged, the judge’s order seemed to express skepticism that the fees covered the system. That was not at issue in the narrow ruling. If necessary, evidence will be developed. The judge did note, however, that the cost to the federal Treasury of making DAPA-eligible illegal aliens eligible for three years of EITC could be as much as $50 billion, which is far more than any user fees could possibly cover.

    The judge’s ruling was more concerned with the costs to Texas of issuing driver’s licenses versus the fees received by Texas. Texas was able to demonstrate clearly that the driver’s license fees received did not cover all the costs, and that it would be injured if it had to issue driver’s licenses to illegal aliens. The Supreme Court recently ruled in the federal government’s on an equal protection challenge to Arizona’s refusal to issue driver’s licenses to illegal aliens, and the judge assumed that such a ruling would apply to Texas as well, so granting legal status woiuld cause an injury to Texas in that it would have to issue driver’s licenses to illegal aliens at a cost to itself of millions of dollars.

    NO NO NO!!! Congress must appropriate all spending. Those fees (which do not come anywhere near paying the freight) do not go into the agency’s purse. They go into the Treasury, like all other monies that are paid or given to the United States.

    Any agency that does not deposit all monies into the treasury is stealing money from the US. This is a serious crime. It would never be ignored even by racist Weaselface’s DoJ.

    The claim is that the operation of the agency is revenue neutral. Not the same as the false implication (deliberately encouraged by TPTB) that the agency spends money that it collects.

Congrats Professor!

This article is linked now on Drudge at the top left corner.

Nice start here.
Now, we should have a cornerstone upon which to build the case to roll-back a great deal of Obama’s unconstitutional actions.
Has someone kept a list?

So now this is set up for a SCOTUS battle, in which Roberts will once again “protect the legitimacy and integrity of the court” and side with the radical progressives.

    Henry Hawkins in reply to Gremlin1974. | February 17, 2015 at 8:41 pm

    Or deliver a make up call like a basketball ref. He turned traitor on the first SC O-care debacle due to worry his and the court’s reputation might suffer if it did not. In fact, both suffered worse with his 180 decision. He may seek to correct that.

    Of course, these are possiblities one cannot know till it all actually happens, but at least it looks like I’m working hard at the keyboard to family behind me, namely Mrs. Hawkins, aka Attila the Honey.

Drudge link, congratulations!

“Illegal Alien” – dozens of federal and hundreds of state laws use this term. It is the ONLY valid term for their status.

Everything else is a euphemism designed, by liberal Democrats, to obscure the fact that they have violated the law AND that they are NOT citizens. In other words, to make them seem more sympathetic.

Stop using the Left’s terminology. They change the terminology on purpose – as a weapon with which to win their battles.