COMMENTARY Border Security

The Immigration Battle Heads to the Big Easy

Apr 1, 2015 4 min read

COMMENTARY BY

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

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Call it the Battle of New Orleans. On April 17, the litigation war over the president’s amnesty plan for 5 million illegal aliens will shift from Brownsville, Texas, to the Big Easy.

In February, the administration suffered a major setback when U.S. District Judge Andrew Hanen issued an injunction against the plan. Now the Fifth Circuit Court of Appeals is set to hear oral arguments over the Obama Justice Department’s request for a stay (pending appeal) of the injunction.

The 26 states who brought the suit against the administration have already filed their first brief in the Fifth Circuit. It summarizes the case quite well:

Defendants wish to implement a massive new program that dispenses with immigration law and grants work permits and lawful-presence status – which will confer Social Security cards and a bevy of other state and federal benefits – to 40% of the unauthorized aliens in the United States . . .

Unilaterally issuing a plethora of benefits to millions of unauthorized aliens would mark one of the largest changes of immigration policy in this Nation’s history. Defendants now move to implement this benefits program immediately without meaningful judicial review – not even the resolution of this appeal. Such a drastic step would require an extraordinary showing of emergency and legal merit, and Defendants have failed to show anything close. In particular, they have identified no looming injury that could justify an ‘emergency’ stay. The preliminary injunction simply confines the Executive to what it previously admitted were the limits of its power, temporarily preventing the implementation of an unprecedented and practically irreversible benefits program in order to allow the Judicial Branch to review its validity.

As the states point out, “Congress has not given the Executive carte blanche to grant lawful presence to unauthorized aliens.”

The administration has tried to rely on “prosecutorial discretion” as its defense, but there was clearly no “discretion” involved in the mass approvals given to illegal aliens — the so-called “DREAMers” — under the 2012 DACA program. As the brief notes, the administration “mechanically approved applications that met DACA’s criteria; between 95%-99.5% of all applications were granted, and the Executive has not been able to identify a single application that was denied for a discretionary reason” (emphasis added).

The brief also cites President Obama’s frank acknowledgement that he “just took an action to change the law.” This damaging admission directly refutes the Justice Department’s claim that the administration is simply acting within the discretion the executive is given under existing immigration law.

The states contend that the president cannot even “come close” to meeting the legal standard of showing that maintaining the injunction will irreparably damage the government. The administration claims the president’s plan must be implemented now “to more efficiently ensure national security.” As the states point out, however, the government used that same argument during the Korean War to justify President Truman’s seizure of steel mills to forestall a strike. Yet in Youngstown Sheet & Tube Co. v. Sawyer (1952), the national-security argument failed to persuade the U.S. Supreme Court. As the states note, that claim is “vastly less compelling now.”

As former Nuremburg prosecutor and Associate Justice Robert H. Jackson said in Youngstown, the unlimited executive power that the framers of the Constitution were trying to avoid was “the prerogative exercised by George III, and the description of its evils in the Declaration of Independence.” That made Justice Jackson “doubt that they were creating their new Executive in his image.” President Obama at one point said, “I am not a king” when it came to immigration policy, yet that is the bottom line of the position Justice Department lawyers are taking in court: that the president has an unfettered ability to implement whatever immigration rules he sees fit.

The states forcefully argue that a stay would prevent meaningful judicial review and irreparably injure them, since legalizing millions of aliens would be a virtually irreversible action once taken. And they once again turn the administration’s own words against it, citing the director of the U.S. Customs and Immigration Service, Leon Rodriguez, a defendant in the case, who admitted that the program could not readily be undone and was designed to cement illegal aliens in place in American society.

Finally, the states also dismiss the administration’s claim that the injunction should apply only to Texas or the states involved in the lawsuit, and not the rest of the country: “Patchwork relief is powerless to prevent the harms threatened by officials acting with nationwide jurisdiction.” In fact, the Justice Department’s argument is “nonsensical,” according to the states, since illegal aliens who are granted deferred action and work permits by the administration won’t be limited in where they can live and work — they will be able to move to any state and apply for work authorizations, licenses, and a myriad of government benefits. Immigration law requires a nationwide policy and, as the states put it, “an unlawful immigration directive requires a nationwide remedy.”

While the appellate court prepares to hear oral arguments on April 17, we may still hear more from Judge Hanen in Brownsville. He has not yet said whether he will be taking any further action against Justice Department lawyers who misled him during the pendency of the states’ request for an injunction. The lawyers had assured Hanen that the Department of Homeland Security was not yet implementing the president’s plan. In fact, DHS had issued more than 100,000 deferrals during that time.

Last week, in a specially called hearing, Hanen gave the DOJ lawyers a thorough, very tough grilling over their misrepresentations. He asked them whether taxpayers would end up paying any sanctions he imposed on the lawyers and chided himself for having relied “like an idiot” on what DOJ told him. So there may be additional fireworks in the Brownsville courthouse yet.

- Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation.

Originally appeared in the National Review Online

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