Deportation Republicans get a nod from a Texas Judge – decision to be appealed

The “big news” today is that a hand-picked federal judge in Texas (forum shopping), late in the evening on President’s Day issued a 123-page decision (Scribd) as everyone anticipated he would, halting President Obama’s recently announced immigration policy.

Ian Milhiser reports at Think Progress, Federal Judge Blocks Obama’s Immigration Action At The 11th Hour. Here’s Why It Probably Won’t Work:

The decision, which came less than two days before the federal government is scheduled to start accepting applications from immigrants seeking to benefit from the new policy, raises a cloud of uncertainty over the millions of immigrants expecting to seek relief under the policy. Yet this particular judge’s decision should surprise no one. Judge Andrew Hanen is a George W. Bush appointee whose past opinions left no doubt that he would leap at the opportunity to strike down a program benefiting undocumented immigrants.

Judge Hanen’s order will be appealed to the 5th Circuit Court of Appeals where there is a high probability that it will be overturned, for reasons explained below.

The Obama administration, and the millions of immigrants who hope to benefit from the administration’s policies, can take solace in the fact that two Republican members of the U.S. Supreme Court hinted as recently as 2012 that they do not share Hanen’s views.

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The Supreme Court has spoken expansively regarding the executive branch’s discretion in immigration matters. “A principle feature” of the deportations process, according to the Court’s opinion in Arizona v. United States, “is the broad discretion exercised by immigration officials.” When confronted with an immigrant who is eligible to be removed from the country, “[f]ederal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”

The Arizona opinion also implies that the executive branch may make categorical decisions that certain kinds of undocumented immigrants (such as workers with families) should be allowed to remain in the country while others (such as violent criminals) should be targeted for deportation. As the Court explained, “[d]iscretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime.

Notably, Arizona was authored by Justice Anthony Kennedy and joined by Chief Justice John Roberts, both of whom are Republicans.

There is also an important practical reason why the executive must have discretion to target its resources towards certain undocumented individuals while effectively ignoring others — those resources are limited. According to the Justice Department, “there are approximately 11.3 million undocumented aliens in the country,” but the federal government only “has the resources to remove fewer than 400,000 such aliens each year.”

Congress’s decision to appropriate only a fraction of the funds the administration would need to remove every single undocumented person in the United States is itself a legislative judgment that most of these individuals will not be removed. As the Supreme Court explained in Heckler v. Chaney, “[a]n agency generally cannot act against each technical violation of the statute it is charged with enforcing,” so it necessarily must make judgments about how to target its resources. The question facing Judge Hanen ultimately boiled down to whether an agency may be explicit and systematic in carrying out these priorities.

Hanen’s opinion strongly suggests that the answer to this question is “no.” To Hanen, the administration’s decision not to crack down on certain immigrants while prioritizing others “is an announced program of non-enforcement of the law that contradicts Congress’ statutory goals.” The government, Hanen claims, “is ‘doing nothing to enforce’” the removal laws against a class of millions of individuals.” Such a policy, he claims, is “complete abdication.”

The flaw in Hanen’s analysis, however, is that it frames as “abdication” the kind of decision that law enforcement officials necessarily must make on a daily basis.

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Secretary Johnson is much like this police chief. Rather than telling cops to target murderers and effectively look the other way regarding prostitutes, he is telling immigration officials to target certain undocumented individuals, such as serious criminals, while effectively looking the other way towards the law-abiding parents of citizens. But Johnson’s decision to target enforcement of laws, which permit deportations and bar undocumented workers from the workplace, involves the same kind of discretion exercised by the police chief. The secretary only has enough resources to target but so many immigrants, so he has set department-wide priorities.

Hanen’s opinion reads a great deal of significance into the fact that the Obama administration policy is unusually transparent. Rather than quietly instructing immigration officials to focus only on certain kinds of undocumented immigrants, the administration opted for an “announced program” that provides clarity to many immigrants regarding whether they will be subject to enforcement. But a police chief’s decision to transfer officers from vice to homicide typically does not become illegal simply because it is announced. And the Arizona opinion recognizes the executive branch’s power to decide that particular immigrants should not be subject to removal proceedings. It’s not at all clear why this power does not permit an executive that has decided that it will not bring deportation proceedings against an immigrant during the next few years to communicate this fact to the immigrant.

Though most of Hanen’s opinion appears to build towards a sweeping denouncement of the administration’s policies, the actual holding of his opinion is an anti-climax. For all of his rhetoric about “complete abdication,” Hanen ultimately claims that he is “not addressing” the plaintiffs’ substantive attacks on the immigration policy. Instead, he orders the program at issue in this case to be halted because it allegedly violates “procedural requirements” regarding what steps an agency must take to implement a substantive rule.

Technically, this means that the Obama administration could overcome Hanen’s order by jumping through an onerous — but hardly insurmountable — set of procedural hurdles. Yet Hanen’s opinion leaves little doubt that he is willing to go much further if pushed to do so.

The Obama administration’s program is not unique. To the contrary, both the Reagan administration and the George H.W. Bush administration offered similar relief — albeit on a smaller scale — to certain undocumented minors and to many “family members living with a legalizing immigrant.” The later program benefited approximately 1.5 million immigrants. Both programs are difficult to distinguish, as a legal matter, from the Obama administration’s programs.

Hanen, however, strongly implies that these programs were also illegal. “[P]ast Executive practice does not bear directly on the legality of what is now before the Court,” he writes, adding that “[p]ast action previously taken by the DHS does not make its current action lawful.”

Perhaps most ominously of all, however, Hanen repeatedly compares the program he halts in his opinion to the Deferred Action for Childhood Arrivals (DACA) program, a program President Obama announced in 2012 which already permits hundreds of thousands of young undocumented immigrants to work and to remain in the country. Though Hanen insists that, “with three minor exceptions, this case does not involve” DACA, many of the criticisms he levels at the more recently announced program would apply with equal force to DACA.

Ironically, however, the fact that Hanen’s opinion casts a cloud of doubt over the legality of DACA may be its most hopeful sign for undocumented immigrants. The Arizona decision did not simply emphasize the executive branch’s “broad discretion” over many immigration-related matters, it was handed down just days after Obama announced the DACA program. Indeed, Justice Antonin Scalia railed against DACA in his opinion dissenting from the majority in Arizona.

If a majority of the justices found DACA legally problematic, it would be very unusual for them to emphasize the scope of the executive branch’s discretion just days after President Obama announced the DACA program. It would be even more unusual for them to do so when one of their brethren specifically criticized that policy in dissent.

The fact that Hanen’s logic appears to extend to DACA, in other words, may be Hanen’s undoing. A majority of the Supreme Court, including two of the Court’s Republicans, have already hinted that Hanen’s opinion is wrong.

There is another serious flaw in the lawsuit brought by Republican states: they lack standing for an actual case and controversy. Some legal experts had already questioned whether the states had standing to bring this lawsuit, because they can’t claim direct injury. One legal expert, Laurence Tribe, thinks the 5th Circuit will lift the Texas court’s injunction on standing grounds.

Immigration attorney David Leopold, who has been closely tracking the case, wrote last week at the Huffington Post, The Texas Lawsuit Challenging Obama’s Immigration Executive Actions Will Be Thrown Out — If the Judge Follows the Law:

The conventional wisdom is that Judge Hanen will enjoin implementation of the executive actions, perhaps as early as this week. Observers cite to a 2013 opinion Judge Hanen wrote in U.S. v. Navara-Martinez, an unrelated criminal prosecution for alien smuggling. There Judge Hanen, using extremely harsh language, lamented what he described as “the apparent policy of the Department of Homeland Security of completing the criminal mission of individuals who are violating the border security of the U.S.” He went on to say the “Department of Homeland Security should enforce the laws of the United States — not break them.”

To many that sounds like a jurist itching to rule against Mr. Obama’s executive action on deportations. And it’s likely why the State of Texas filed the case in the Southern District of Texas where Judge Hanen presides. The 30 page lawsuit prominently cites Navara-Martinez in an obvious effort to remind the judge that he has already found that the Administration has colluded in a criminal conspiracy to violate the law.

But the conventional wisdom could be way off. In fact, there’s a strong chance that Judge Hanen will throw the case out — if he correctly follows the law. [He didn’t.]

Here’s why:

First, and perhaps most importantly, the State of Texas has filed a bogus complaint; it reads more like a factually inaccurate press release than a legal document. It fails to describe exactly how the plaintiff states are or will be concretely harmed by the temporary deportation reprieves; especially when the Administration has used all resources allocated to it annually by Congress to detain and deport undocumented immigrants — approximately 400,000 people a year — leading some to label President Obama the “deporter-in-chief.” Further, at least one federal court has dismissed a similar challenge to the President’s executive actions brought by Joe Arpaio, the infamous anti-immigrant sheriff of Maricopa County Arizona, concluding Arpaio lacked standing to sue. While the decision is not binding on Judge Hanen, its cogent analysis of the complex legal doctrine of standing certainly provides persuasive authority for the dismissal of the Texas lawsuit.

Second, there’s no question Judge Hanen is extremely frustrated with DHS’s policy of reuniting unaccompanied minors with their undocumented parents in the U.S. But his opinion in Navara-Martinez was just that, an opinion. While reasonable minds may differ as to the prudence of using a judicial forum to express such views, nothing Judge Hanen did exceeded the bounds of his authority as a federal judge. Indeed, he noted judges are not authorized to make policy. “This Court takes no position on the topic of immigration reform,” Judge Hanen wrote, “nor should one read this opinion as a commentary on that issue. That is a subject laced with controversy and is a matter of much political debate which is not the province of the judicial branch.”

Third, while Judge Hanen severely criticized what he termed the Administration’s “failure to enforce current United States law,” he did so in the context of an alien smuggling prosecution. Whether or not one agrees with the judge’s views, it’s clear he was neither criticizing the Administration’s civil immigration enforcement priorities nor questioning prosecutorial discretion in general, including deferred action on deportations. “This Court is not opposed to the concept of prosecutorial discretion,” wrote Hanen, “if that discretion is exercised with a sense of justice and common sense.” And it would seem — at least to me — that common sense immigration enforcement includes processes like DACA and DAPA which allow the Administration to focus limited resources on deporting dangerous felons, national security risks and recent border crossers rather than DREAMERS and mothers and fathers of U.S. citizens and lawful permanent residents.

Judge Hanen, like all federal judges, has sworn to “faithfully and impartially discharge and perform” his duties under the Constitution. That is a serious oath which requires him to fairly apply the law — regardless of whether or not he personally agrees with the President’s executive actions on deportations. In the meantime many will take comfort in knowing that whatever Judge Hanen decides he will not likely have the last word. That’s all but certain to come from the appellate courts.

The LA Times reports, Obama puts immigration protections on hold after order:

Homeland Security Secretary Jeh Johnson announced that the Obama administration has put off for now the first step in implementing the program, expanding the Deferred Action for Childhood Arrivals initiative that has granted a temporary reprieve from deportation for nearly 600,000 young people. The administration had been scheduled to begin accepting applications for the expansion Wednesday.

Johnson said the administration was also putting on hold plans for a much larger program, known as Deferred Action for Parents of Americans, which could apply to around 4 million adult immigrants.

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The Department of Justice will appeal that temporary injunction,” Johnson said in a statement, referring to the judge’s order. “In the meantime, we recognize we must comply with it. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do.

Greg Sargent explains that the Deportation Republicans have already achieved one of their goals in this lawsuit: to create a “chilling effect” on the DACA program.

Community groups are trying to educate a much larger, more diffuse immigrant population about the new deferred-action programs, and persuade them that it’s safe to apply. But news and misinformation about the lawsuit is spreading confusion and fear among the very people these groups are trying to reach.Organizers are worried about a “chilling effect”: by the time applications do open for deferred action, immigrants will have been intimidated out of applying, because they won’t believe the program is safe or permanent.