In a sweeping ruling that the Obama administration will quickly challenge on appeal, a federal trial judge sitting in a courthouse along the Texas-Mexico border has blocked the government from enforcing its three-month-old policy of allowing more than four million undocumented immigrants to remain legally in the country and qualify for benefits. Firm opposition to the new program, and the government’s strong defense of it, suggest that the dispute will eventually reach the Supreme Court.
U.S. District Judge Andrew S. Hanen of Brownsville, Texas, issued a 123-page opinion on Monday, keeping the new deferred deportation policy on hold until he conducts a full trial on its legality. Key parts of the new program were due to take full effect this week. (The opinion, found here, is broken into three segments — two of fifty pages each, and one of twenty-three. The judge’s implementing order is here.)
Although the ruling is only a temporary one, prior to a trial, it is subject to appeal, and government officials said they will pursue a challenge — presumably, first in the U.S. Court of Appeals for the Fifth Circuit and, perhaps, in the Supreme Court. Judge Hanen mentioned both channels as possibilities.
Even as a preliminary ruling, however, the opinion forecast a difficult legal road for the government at the coming trial. Judge Hanen directly concluded that the government had “completely abdicated” its duty to enforce U.S. immigration laws, and repeatedly displayed deep sympathy for the plight of states as they are both denied any role in preventing illegal entry of non-citizens and burdened with costs and obligations to provide public services to the millions of arrivals.
The secretary of Homeland Security — the government official who adopted the program on President Obama’s orders — “is not just rewriting the laws; he is creating them from scratch,” the judge declared. The program, he added, “represents a massive change in immigration practice.”
Fully half of the opinion is devoted to a discussion of the right of state governments to sue the federal government for adopting the new deportation deferral program. As part of that discussion, Judge Hanen repeatedly chided federal officials for putting states in a bind, and for doing so by ignoring their duty to enforce existing immigration law.
Ultimately, the judge found that only one border state — Texas — did have the right to file the legal challenge, citing the financial burdens it already faces and will continue to face from the presence of hundreds of thousands of undocumented immigrants.
The ruling blocks not only the deferral program that President Obama and other federal officials announced last November — affecting between four and five million individuals, and potentially more — but also blocks an expansion of an earlier, 2012 program that allowed younger people brought to the U.S. as children to remain and to get jobs and drivers’ licenses — the so-called “dreamer program” that is likely to affect close to two million individuals. Individuals who had already taken advantage of the 2012 program within its original terms would not be affected by the decision.
The states, in suing over both the new program and the expansion of the 2012 arrangements, had made two broad claims: a constitutional claim, that the President and other officials had failed to “faithfully execute” the laws, as Article II requires, and a claim that government officials put the changes into effect without prior approval by Congress and without following the proper procedures.
Judge Hanen ruled only on the procedural point, finding that the new policy was implemented in violation of the Administrative Procedure Act, which requires the government to seek public reaction before implementing a new policy or program. He rejected the government’s argument that the program was a result solely of the exercise of enforcement discretion that was not subject to review at all by the courts, and did not have to go through the APA procedures.
The judge insisted that his ruling did nothing to second-guess the Department of Homeland Security’s choices as to how to use its enforcement resources, and choices as to whom to deport, or not.
But he concluded that the new program and the expansion of the 2012 “dreamer” policy were a final form of official action by a federal agency that is, in fact, subject to review in federal court.
The judge wrote: “Instead of merely refusing to enforce the [immigrant deportation] laws against an individual, the DHS has enacted a wide-ranging program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. Absent [the new program], these individuals would not receive those benefits.”
Rather than simply using its discretion not to take specific enforcement action, the judge said, DHS has created a new program of “bestowing benefits” that only Congress can create. “The government must concede,” the judge commented, “that there is no specific law or statute that authorizes [the new benefits].”
Congress, the opinion added, knows how to give a federal agency discretionary authority to enforce federal law, but it did not do that for the deportation deferral program announced last November. “No statute gives the DHS the power it attempts to exercise….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.”
In the end, the judge upheld only the claim of the states that the new policy was adopted in violation of the procedural requirements of the Administrative Procedure Act, and thus did not rule on the claim that the policy violates the Constitution’s duty for the president to “faithfully execute” the nation’s laws.
The judge conceded that the effect of his preliminary order would not require the government to start deporting those who are or might be covered by the new policy, but would put off the benefits they would get from being legally present in the United States.
The opinion left open the possibility that the Obama administration could now seek to adopt the same new policy by announcing it as a proposed new program and invited public comment on it before it was actually implemented. It seems doubtful that the government will try that alternative, likely preferring to go to higher courts to try to overturn Judge Hanen’s temporary order.