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).
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