Washington Times
By Stephen Dinan
February 17, 2015
Judge
Andrew S. Hanen ruled that President Obama’s policies have left the
border less secure and invited illegal immigrants into the U.S., but the
judge said it was the
administration’s own attempts at slicing and dicing convoluted
immigration laws that left him with no choice but to halt the
president’s deportation amnesty.
The
123-page ruling, issued late Monday, did not reach the weighty
constitutional issues that congressional Republicans were seeking. Judge
Hanen instead ruled that he
never needed to decide on those matters because he was able to conclude
that Mr. Obama broke a regular law, the Administrative Procedures Act,
by creating a major policy without following all the steps for public
review and comment.
Just
as critical, Judge Hanen ruled that Texas and more than two dozen other
states had standing to bring the lawsuit in the first place because of
the burdens they would
face, including millions of dollars spent issuing driver’s licenses and
other public benefits to illegal immigrants. Without standing, the
entire case would have been moot.
Even
without reaching the major constitutional issues, Judge Hanen signaled
that he thought Mr. Obama and Homeland Security Secretary Jeh Johnson,
who are charged with
carrying out the laws written by Congress, went further by taking on
the law-writing power themselves.
“The
DHS was not given any ‘discretion by law’ to give 4.3 million removable
aliens what the DHS itself labels as ‘legal presence,’” Judge Hanen
wrote. “In fact, the law
mandates that these illegally-present individuals be removed. The DHS
has adopted a new rule that substantially changes both the status and
employability of millions. These changes go beyond mere enforcement or
even non-enforcement of this nation’s immigration
scheme.”
Mr.
Obama said his administration will appeal. White House officials said
they may even ask for an emergency stay that would halt the injunction
and let the amnesties
go into effect. The officials said a final decision on requesting a
stay should be made in the next few days.
In
his ruling, the judge repeatedly questioned the Homeland Security
Department’s figures and pointed out that they were relying on a 2009
estimate of illegal immigrants
in the U.S. He also said several times that their arguments were
“disingenuous” and mentioned Mr. Obama’s declaration in November that he
had taken action to “change the law” as evidence that the policies
weren’t mere guidance but were meant to be more substantive.
In
one footnote, Judge Hanen said the Homeland Security Department issued
conflicting guidance in November, saying in one memo that all illegal
immigrants are still deportable
and could be priority cases, even as another memo specifically ordered
them not to be kicked out. It even ordered immigration agents to drop
existing cases against illegal immigrants who might meet the new
criteria.
Judge
Hanen said the administration was trying to have it both ways by
telling him that Texas was under no obligation to issue driver’s
licenses to those approved for
the amnesty but telling a federal appeals court in California that
states must issue the driver’s licenses or be deemed discriminatory.
Judge Hanen sided with Texas in that dispute.
The
judge also weighed in on bigger policy issues, officially finding that
Mr. Obama’s immigration strategy has created some of the very problems
the administration says
it is trying to combat.
“The
court finds that the government’s failure to secure the border has
exacerbated illegal immigration into this country,” Judge Hanen wrote.
“Further, the record supports
the finding that this lack of enforcement, combined with this country’s
high rate of illegal immigration, significantly drains the states’
resources.”
The
ruling Monday confounded legal analysts who backed the administration
and who said Mr. Obama was following the well-trod footsteps of
presidents who had issued similar
stays of deportation for people whom Congress wouldn’t grant full
protection.
Immigrant
rights groups, who had been working for weeks to undermine Judge Hanen
by accusing him of bias, said his ruling bore out their fears.
“This
decision, by a judge notorious for his hostility to immigrants and to
Obama, will not stand,” said Frank Sharry, executive director of
America’s Voice. “As it moves
up the judicial ladder, serious jurists will apply the law, decide that
it is well within established legal authority and historical precedent,
and the programs will be fully implemented.”
In
court papers, and in a hearing last month, the administration defended
Mr. Obama’s policies as a natural progression of the president’s
prosecutorial discretion powers.
Attorneys argued that Congress allocates only a fraction of the money
it would take to deport all illegal immigrants, so it makes sense for
Mr. Obama to set priorities for whom to target with those limited
resources, and illegal immigrants who have been in
the country a long time, have some family ties and have no serious
criminal records shouldn’t be forced out.
Judge
Hanen said Mr. Obama went too far in creating a program to allow for
illegal immigrants to apply for proactive lawful status but ruled that
the president does have
full discretion not to deport. That is a significant victory to the
president because it means that the 4 million or more illegal immigrants
Mr. Obama deemed eligible for amnesty are not likely to be deported
during his term in office even if they are unable
to obtain work permits.
Judge
Hanen is the second federal judge to rule against Mr. Obama’s policy,
though his decision was by far the most thorough examination. A federal
judge in Pennsylvania
ruled in December that the president acted unconstitutionally, though
that judge was deciding the case of a single illegal immigrant and
didn’t halt the president’s policies.
A
federal judge in the District of Columbia threw out a challenge to Mr.
Obama’s amnesty, arguing that the plaintiff, Maricopa County Sheriff Joe
Arpaio in Arizona, didn’t
have standing to sue. The judge in that case never decided on Mr.
Obama’s policies, though she leaned toward accepting the
administration’s argument that it was using proper discretion.
White
House officials Tuesday pointed to that D.C. court move, saying it
bolsters their belief that they will eventually prevail.
“We
believe we are on very solid legal ground here,” said Cecilia Munoz,
Mr. Obama’s chief domestic policy adviser. “We’re going to appeal, we
expect to prevail legally
and we will be ready to implement these programs.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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