Judge Rules Against Executive Action, Preserving the Status Quo

On February 16, U.S. District Court Judge Andrew Hanen issued a temporary injunction against two of President Obama’s executive actions on immigration: the expansion of Deferred Action for Childhood Arrivals (DACA) and new Deferred Action for Parents of Americans (DAPA).

The case was brought by the Attorney General of Texas, joined by 25 other Republican-led states. The ruling was not unexpected; the plaintiffs were able to shop around for a judge that would likely rule in their favor, and Judge Hanen’s negative views towards the administration’s immigration policies are well known.

The administration will likely appeal, and the plaintiffs will not be able to shop for a judge at the appellate level.

In the meantime, those two programs are on hold. The administration was going to begin taking requests in the expanded DACA program on February 18. It will have to hold off.

It does not mean that the programs are unconstitutional. Indeed, Judge Hanen’s order was based on his belief that the administration violated the Administrative Procedure Act. That act requires certain agency actions (generally, regulations) to be preceded by publication of a proposal in the Federal Register, with time for public comment. The administration could simply publish a notice about the DACA and DAPA programs in the Federal Register, provide a period for public comment, and proceed with implementation of the programs.

The administration is not likely to do that, however, because it is widely expected that Judge Hanen’s order will be overturned. It may take a few weeks for the 5th Circuit Court of Appeals to make its ruling once the administration appeals.

So what is the practical effect? The administration already has, for the past few years, set priorities for who is being targeted for deportation. According to a Migration Policy Institute analysis of immigration enforcement, undocumented immigrants in the interior of the U.S., who have not been convicted of a crime, have very little chance of being deported. The administration has done a decent job of focusing enforcement efforts on persons who have committed crimes and on recent border crossers.

Since it is widely believed the Texas judge’s order is temporary, preparations for implementation of the president’s executive actions will continue. Advocates are urging potential beneficiaries to continue to prepare by, for example, gathering documents to provide evidence they qualify for the deportation relief. For example, United We Dream, which advocates for DACA, wrote in a statement reacting to the injunction, “Preparation for executive action is going full steam ahead.” In January, Los Angeles Mayor Eric Garcetti said that, if there was a setback for the president’s immigration actions in the courts, his city “will keep doing everything it can to help undocumented residents gain legal status.” He is not the only mayor supporting the president’s executive actions. The largest cities in the U.S., including the largest cities in four of the states suing the president, filed a “friend of the court” brief in opposition to the states’ lawsuit.

The bigger effects of the judge’s ruling are psychological and political. For undocumented, law-abiding immigrants in the interior of the U.S., having little chance of being deported is not the same as having a piece of paper saying they are temporarily protected from deportation. Even when the decision is reversed, the judge’s ruling emphasizes the tenuous nature of programs meant to provide relief from deportation while the country waits for Congress to reform our immigration laws. The uncertainty may depress interest in the programs among potential beneficiaries.

Politically, the judge’s ruling reinforces the narrative for Latinos that Republicans just want to deport them, or their parents, friends, and relatives. Republicans may say that is not their intent, but they are having trouble both satisfying their extreme right elements and claiming they are not against Latinos. After President Obama made his immigration action announcement in November of last year, Latinos were overwhelmingly supportive. Now Republicans are doing everything they can to stop the programs from being implemented, and Latinos are taking note.

In the short term, some observers believe that the judge’s order provides an opportunity for congressional Republican leaders to get out of the box they have put themselves in. Funding for the Department of Homeland Security expires in 10 days, and Republicans have attached provisions to the funding bill prohibiting the president’s executive actions from taking effect. The bill cannot pass in the Senate, where 60 votes are needed to overcome a filibuster. With the judge’s ruling, some believe Republicans can now pass a DHS funding bill without the controversial political proscriptions.

Others are skeptical of this argument, and indeed, Republican leaders yet appear to be more interested in satisfying their extreme right factions than in preventing a partial government shutdown.

No matter how the appeal turns out, the fight won’t be over. At a bare minimum, it will continue until there is a definitive answer at the polls.