White House Struggles on Immigration Ruling

New York Times

By Michael Shear and Adam Liptak

February 18, 2015

White House Struggles on Immigration Ruling

President Obama’s lawyers, facing what could be months of delay on the White House’s immigration efforts, are struggling for a response to a Texas judge’s ruling that has imperiled one of the president’s potential legacy achievements.

A top administration official said Wednesday it was unclear whether the Department of Justice would seek an emergency order that would allow the president’s immigration programs to go into effect while an appeal proceeds. A spokeswoman for the Justice Department said that no decision had been made on an emergency application to an appeals court, but she pledged to fight all challenges to the president’s actions.

Monday’s late-night 123-page ruling by Judge Andrew S. Hanen forced Mr. Obama to halt plans to protect millions of undocumented immigrants. White House supporters attacked the judge’s ruling as “shaky.” Conservative legal critics hailed it as a powerful argument.

Regardless of which side prevails, the Texas ruling did show how deft Mr. Obama’s adversaries had become in their efforts to delay — if not derail — a program that immigration advocates have been intensely clamoring for.

In the meantime, the clock on Mr. Obama’s presidency is ticking.

“I think it’s a significant threat,” said David E. Bernstein, a law professor at George Mason University. “My guess is that this reflects some real concern that’s out there.”

Monday’s ruling from Judge Hanen had none of the hallmarks of a legal blockbuster. Its language did not appear to be aimed at reshaping the power of the presidency or changing the constitutional framework for future occupants of the Oval Office. Indeed, the judge acknowledged vast presidential power in his ruling.

Instead, Judge Hanen wrote, Mr. Obama had gone astray by failing to seek public comment before implementing the program. That, the judge said, probably violated the Administrative Procedure Act, which lays out the steps that must be completed before some changes in federal agencies’ policies can go into force.

Eric Posner, a law professor at the University of Chicago, said Judge Hanen’s holding was, in a sense, “trivial.”

Indeed, a ruling focused on administrative law may seem an unlikely roadblock for a consequential program. Even on its own terms, Mr. Posner said, Judge Hanen’s opinion was flawed. Under the president’s directive, immigration officials would retain discretion to reject candidates for the protection program, he said, so the requirement of public comments does not actually apply.

But other scholars said that the legal arguments made by the judge would be difficult for the administration to counter.

“I have always thought that the administration and their supporters were greatly underestimating the likelihood that this would all get struck down in court,” said Michael McConnell, a law professor at Stanford University.

Judge Hanen’s opinion was certainly skeptical of the administration’s approach. “The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country,” he 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.”

Judge Hanen’s opinion was marked by haste. He repeatedly referred to Justice John Paul Stevens as “Justice Stephens.”

But Walter Dellinger, a former acting solicitor general in the Clinton administration, said the flaws in the opinion went deeper than that.

“He barely mentions the fact that Congress has directed the D.H.S. to set priorities for immigration enforcement,” Mr. Dellinger said.

Judge Hanen did acknowledge that the Department of Homeland Security “has virtually unlimited discretion when prioritizing enforcement objectives and allocating its limited resources.”

But he added that the administration crossed a line when it granted the right to work lawfully to people it chose not to deport. That was not exercising enforcement discretion, the judge said, but conferring a benefit, a change so fundamental it triggered requirements that the administration ignored.

The administration has argued that a shift in enforcement priorities cannot be challenged in court and are not subject to the administrative procedure law.

The ruling confronts the administration with a series of uncomfortable choices. Its decision will be affected by the reality that time is not its friend.

The president could concede the judge’s point about administrative procedures by agreeing to publicly advertise his immigration program and accept public comments. But that would take months, and his adversaries could still mount other legal challenges after that comment period ended.

“In practice,” Mr. Posner said, “notice-and-comment rule making can take years.”

It could ask the federal appeals court in New Orleans, the United States Court of Appeals for the Fifth Circuit, for a stay of Judge Hanen’s preliminary injunction. But that could be an uphill fight in a court dominated by Republican appointees.

A stay is ordinarily granted to preserve the status quo. Were the program to move forward, its benefits and protections might be hard to take back. Without his preliminary injunction, Judge Hanen wrote, “There will be no effective way of putting the toothpaste back in the tube.”

Any decision by the appeals court on a stay application would almost certainly be appealed to the Supreme Court.

But the administration may prefer to file an appeal rather than an emergency application, though perhaps on an expedited basis, in an effort to get the merits of the dispute to the Supreme Court as soon as possible.

Josh Earnest, the White House press secretary, said the administration’s lawyers were reviewing their legal options and said he expected a decision within a day or two about how they would challenge the judge’s ruling.

Mr. Earnest added that he hoped that the lawyers could “move as quickly as we can through the legal system so that that situation can be resolved.”

In recent decisions, the Supreme Court has generally sided with federal authority in state challenges to immigration policies. In 2012 it upheld one part of a tough 2010 Arizona immigration law even as it endorsed broad federal power over immigration. In 2011, it sustained a different law that imposed harsh penalties on businesses that hired illegal workers.

And in December, the court let stand a ruling requiring Arizona to issue driver’s licenses to young immigrants spared from deportation by Mr. Obama.

For more information, go to:  www.beverlyhillsimmigrationlaw.com