Late on Monday, a federal judge in Texas granted a temporary injunction in Texas v. United States, a case brought by 26 states challenging President Barack Obama’s recent executive actions on immigration. The order by U.S. District Judge Andrew Hanen, a George W. Bush appointee, has nationwide reach and effectively blocks the implementation of the most important aspects of the new immigration policy, including an expansion—scheduled to begin on Wednesday—of a 2012 directive granting relief from deportation to undocumented students who were brought to the United States as children.
In his 123-page opinion accompanying the order, Hanen did not render the new policies unconstitutional—that’s a question reserved for a later trial—but explained at length the legal reasoning justifying a halt to the new Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. Chiefly, Hanen found that the states had “standing” to oppose the measures announced by the president—that is, they could claim their sovereign interests will be harmed if DAPA moves forward—and that they were likely to succeed on their claim that the immigration policies were illegally implemented. Somewhat unexpectedly, he anchored this latter point on the Administrative Procedure Act, an important statute governing federal agencies' discretion to interpret existing law. Here, Hanen found that the Department of Homeland Security violated longstanding procedural devices aimed at giving “notice” to the public of agency action, and that the government could point to no law granting it authority to do so.
Seemingly wary of the political implications of his ruling, Hanen also cautioned in his decision that “this case does not involve the wisdom, or the lack thereof, underlying the decision ... to award legal presence status to over four million illegal aliens.” But that in itself is politically charged language. Hanen repeats that “legal presence” line several times—which is likely to be a point of contention because the president’s immigration order does not grant legal status to undocumented immigrants. It is only a reprieve from deportation with the attendant benefit of work authorization; both permanent residency and a path to citizenship are off the table. Relying on dubious precedent, Hanen gives more credence to the argument that immigration laws are designed to “protect the states” and sides with them in finding that the federal government exceeded its authority.
But one thing Hanen can’t and won’t do is order DHS to start deporting people. That means that his view that the president’s immigration order “unilaterally allows individuals removable by law to legally remain in the United States” is specious: It misapprehends the government’s ability to marshal its limited resources with respect to deportations. Hanen concedes that “DHS has virtually unlimited discretion when prioritizing enforcement objectives,” but brushes that aside and ultimately agrees with the notion that “DAPA is simply the Executive Branch legislating.”
The sheer breadth of Hanen’s order and its questionable reasoning guarantee that the case will move swiftly through the appellate process, potentially reaching the Supreme Court in a matter of weeks. “The district court’s decision wrongly prevents these lawful, commonsense policies from taking effect, and the Department of Justice has indicated that it will appeal that decision,” the White House said in a statement. Meanwhile, immigration activists called for calm while the court ruling moves through the appeals process, but also criticized it for being “clearly based more on politics than law,” according to a statement from DRM Action Coalition. United We Dream, a group that represents DREAMers and pushed hard for executive action, called the decision “a bump in the road.”
The next stop for the litigation is the U.S. Court of Appeals for the Fifth Circuit, which covers Texas and is known as one of the more conservative federal appellate courts in the country. But the case will inevitably end up at the Supreme Court, which in recent months has stopped or let stand similarly controversial orders in areas such as same-sex marriage, voting rights, and abortion. Here, though, the political salience of immigration is more pronounced, given all the tug-of-war between Congress and the president on the matter, plus the fact that a majority of the states are the ones bringing suit. Since the justices’ deference to states’ rights is no secret, it wouldn't be a shock if they agree that DAPA should be stopped in its tracks.