海角大神

A federal district court judge in Texas has聽ordered a temporary halt to the Obama administration鈥檚 deferred deportation plan聽for some people who are in the country illegally, ruling that it exceeds the authority granted to the executive branch by federal immigration laws:

This ruling by Judge Hansen, a George W. Bush appointee who was originally nominated by President George H.W. Bush only to see his nomination lapse before the Senate could vote on it in 1992, deals with two issues that impact the both the legal merits of the program the president announced and the future of any litigation challenging that program. As I鈥檝e discussed in the past, one immediate hurdle that any party challenging the program, which is officially known as 鈥淒eferred Action for Parents of Americans and Lawful Permanent Residents,鈥� or DAPA, is the question of whether or not anyone would have standing under the law to actually challenge the program. Late last year, for example, a lawsuit that had been filed by Sheriff Joe Aripaio of Maricopa County, Ariz., was聽dismissed by a federal judge in Washington, D.C.,聽at least in part because the judge found that Aripaio lacked standing to challenge the DAPA program. In that case, Arpaio had essentially argued that he had standing to bring the case because the new policy would require his agency to expend resources to deal with illegal immigrants arriving in the area in response to the new federal policy. The judge in that case, correctly in my opinion,聽rejected Arpaio鈥檚 argument聽because he had failed to articulate any kind of particularized harm resulting from the DAPA program.

In the lawsuit before Judge Hansen, Texas and the other states that had joined it in the litigation are essentially making the same type of argument regarding the alleged damages that they would suffer as a result of the new policy. As I noted when the Texas lawsuit was first filed,聽it鈥檚 an argument that does not really stand up to scrutiny when you look at it logically.聽Where the judge in Washington rejected Arpaio鈥檚 standing argument, though, Judge Hansen essentially accepted it lock, stock, and barrel. Essentially, Judge Hansen argued that Texas and the other states have standing because the new program would increase the number of people eligible for certain state benefits. The problem with that argument, though, is that most of the benefits that the states cite in their favor are not ones that DAPA requires them to issue, so, as the Justice Department argues, the injuries are in some sense self-inflicted. Without question, the standing issue is one that will be heavily argued in the expected appeal of this ruling to the Fifth Circuit Court of Appeals and, if necessary, the Supreme Court.

On the merits of the case, it鈥檚 important to note that Judge Hansen has not ruled that the administration acted unconstitutionally in issuing the regulations that make up the DAPA program, or even that the regulations violate the discretion that the nation鈥檚 immigration laws grant to the executive branch. Instead, his ruling at this point is based on the argument made by the states that the administration failed to abide by the provisions of the Administrative Procedure Act in issuing the regulations. In theory, the administration could overcome this problem through some mildly cumbersome but ultimately limited bureaucratic measures, but it鈥檚 unlikely that will happen given the fact that this is merely a temporary ruling until Hansen rules on the ultimate merits of the state鈥檚 claims and that the process of appealing this decision to the Fifth Circuit and, ultimately, the Supreme Court will ultimately be less cumbersome and time consuming. For the time being, though, this means that the DAPA program is on temporary hold and that the estimated three to four million people who would have been eligible to apply under its provisions will have to wait until the stay is lifted to proceed forward.

Ultimately, as I鈥檝e noted before, the Supreme Court emphasized in its decision several years ago regarding Arizona鈥檚 controversial bill to give police expanded authority to detain suspected illegal immigrants that the federal government has broad discretion in the area of immigration that preempts the powers of the states. As聽Ian Millheiser聽notes, that decision was handed down mere days after the president had announced the initial Deferred Action for Childhood Arrivals (DACA) program that provides temporary legal status for immigrants brought to this country illegally as children. No doubt, the justices were well aware of this program when they were making the final adjustments to their opinions in that case. Indeed, Justice Scalia had taken the rather unusual step of mentioning DACA in his dissenting opinion even though it was entirely irrelevant to the case before the court. As Millheiser argues, if the court shared Scalia鈥檚 disdain for DACA, then it seems counterintuitive that they would have been comfortable with issuing an opinion with such a broad endorsement of near-complete discretion for the federal government in general, and the executive branch in particular. Obviously, we can鈥檛 know exactly how the justices would rule in this case if and when it reaches them, but the Arizona case certainly seems to suggest that they would be more likely to favor the arguments of the Justice Department than those advanced by the states.

As a preliminary matter,聽the federal government has already announced that it will be appealing this ruling to the Fifth Circuit, which will have to decide whether or not to stay Judge Hansen鈥檚 ruling before ruling on the merits itself. Potentially, the Supreme Court could also be asked to weigh in on the question of a stay of the ruling as well. If that stay is lifted, then DAPA will be able to go forward while the merits case proceeds forward. If it is not, then the program would be on hold until a final ruling is issued and perhaps far beyond then, considering that this is likely to be a case that will find its way to the Supreme Court eventually.

Here鈥檚 the opinion:

Texas Et Al v. United States Et Al Opinion聽

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.