UPDATED 6:15 p.m. The 26 states that challenged the new immigration policy urged the judge in Texas not to act quickly on the government request. They argued that they should have at least a week to respond.
Urging a federal trial judge in Texas to act within two days, the Obama administration on Monday filed an emergency plea for permission to promptly start taking applications from undocumented immigrants for a right to stay in the country. If the judge who ruled against that policy a week ago has not acted by Wednesday afternoon, the government said, it will ask a federal appeals court to step in. If it gets no delay from lower courts, it is expected to ask the Supreme Court for a postponement.
As a backup request, the government’s filing suggested that the judge limit his order blocking the new policy solely to Texas — the only state that the judge ruled had a right to bring a court challenge to the policy.
U.S. District Judge Andrew S. Hanen last Monday issued a broad order, applying nationwide, that would keep the new deferred-deportation policy on hold until a full trial is held on the challenge filed by Texas and 25 other states. The Justice Department on Monday filed a formal notice that it will appeal that case to the U.S. Court of Appeals for the Fifth Circuit.
Simultaneously, the Department also filed a request for Judge Hanen to put his order on hold during the government’s appeal or, as an alternative, to limit its scope within the borders of the state of Texas. The Department’s stay application lays out in considerable detail the legal and constitutional arguments it plans to make to the Fifth Circuit Court, to try to get the new policy back into effect.
Among other arguments, the application argued that Judge Hanen had no jurisdiction even to rule on the states’ challenge, contending that the states could not show that they would suffer any genuine injury from the policy, that they have no right to sue the government over such a policy, and that the policy is nothing mere than a simple exercise of discretion that the government has been given by Congress to decide how to enforce the nation’s immigration laws.
Although the case raises fundamental constitutional issues about enforcement of federal laws, and adopt the role of the Executive Branch in that process, Judge Hanen found that — at least so far — the challenging states have only offered a case they are likely to win on the procedural point that the government issued the new policy without giving the public a chance to react in advance.
In the course of his 123-page opinion, however, Judge Hanen offered a wide range of criticism of the government policy, contending that it represented not only an “abdication” of the Executive Branch’s duty to carry out laws passed by Congress, but that it actually was an attempt by the Executive Branch to write its own version of new laws that created special benefits for undocumented immigrants — benefits of a kind that, he wrote, could only be established by Congress.
The government application insisted that it was not abdicating any duty, but simply using the powers given to it by law to decide how to allocate its resources for enforcement.