Tuesday, February 17, 2015

What the block on Obama's immigration action means

Vox has it.

-- Relief is delayed for millions of people

Here's what this means: Until this ruling is reversed or a different ruling comes down in the future, the federal government isn't allowed to do anything to implement either of the new programs President Obama announced in November to protect unauthorized immigrants from deportation.

Between the two programs, millions of immigrants were supposed to be eligible for deferred action (three years of protection from deportation) and work permits. Neither of those programs had actually started accepting applications yet, although one was supposed to start on Wednesday. Now they won't be able to start until further notice.


-- Why this is a serious threat to Obama's immigration policy


When the administration created the first deferred-action program in 2012, for young unauthorized immigrants, they discovered the success of the program relied on people signing up — and on the ground, organizers learned that finding eligible immigrants and getting them to apply was the hardest part. Now, community groups are trying to educate a much larger, more diffuse immigrant population about the new deferred-action programs, and persuade them that it's safe to apply. But news and misinformation about the lawsuit is spreading confusion and fear among the very people these groups are trying to reach.

Organizers are worried about a "chilling effect": by the time applications do open for deferred action, immigrants will have been intimidated out of applying, because they won't believe the program is safe or permanent.

-- Does this mean Obama's executive actions have been found unconstitutional?

No. The reason that Judge Hanen is stopping Obama's actions actually isn't about the Constitution at all. As Josh Blackman, a professor at the South Texas College of Law who filed a brief on behalf of the states in this case, says, "Generally, courts will not reach the constitutional question unless they need to."

Instead, Hanen's ruling is about a procedural law called the Administrative Procedures Act, and in particular the "notice and comment requirement" which is the typical procedure for making federal regulations. According to Cecilia Wang, Director of the Immigrant Rights Project for the ACLU, Hanen's ruling says that "if (the government) wanted to do these things it should have provided notice in the Federal Register, with period for comment." But because the Obama administration didn't do that for these actions, the ruling says, it violated the law.

Furthermore, this isn't even Judge Hanen's final opinion on the matter. This ruling is an injunction: it means that while Judge Hanen hasn't decided whether or not the president's executive actions are unconstitutional or illegal, the government has to stop acting on them while the judge makes up his mind.


-- What happens next?

At this point, it's up to the Department of Justice to decide whether they want to ask for a stay — basically, something to enjoin the injunction. They're (obviously) expected to do that. Then it'll be up to the Fifth Circuit to consider the stay. If they side with the federal government, the program will start running again; if they shoot down the federal government again, implementation will have to wait.

The ruling on the stay will determine whether or not the president's policies move forward for the next several months. During that time, the Fifth Circuit will be considering whether to uphold Judge Hanen's injunction. That could take four to five months, if they fast track the case, or seven to eight months if they don't. At the end of that time, they'll have another opportunity to stop the program or restart it: even if they grant the government a stay this winter, if they uphold Judge Hanen's ruling later in the year, the government has to stop again.

Meanwhile, Judge Hanen himself still has to issue his final ruling on whether or not the executive actions were constitutional.


-- The Silver Lining

Ironically, however, the fact that Hanen’s opinion casts a cloud of doubt over the legality of DACA (Deferred Action for Childhood Arrivals) may be its most hopeful sign for undocumented immigrants. The Arizona decision did not simply emphasize the executive branch’s “broad discretion” over many immigration-related matters, it was handed down just days after Obama announced the DACA program. Indeed, Justice Antonin Scalia railed against DACA in his opinion dissenting from the majority in Arizona.

If a majority of the justices found DACA legally problematic, it would be very unusual for them to emphasize the scope of the executive branch’s discretion just days after President Obama announced the DACA program. It would be even more unusual for them to do so when one of their brethren specifically criticized that policy in dissent.

The fact that Hanen’s logic appears to extend to DACA, in other words, may be Hanen’s undoing. A majority of the Supreme Court, including two of the Court’s Republicans, have already hinted that Hanen’s opinion is wrong.

So to summarize: Greg Abbott went shopping for a federal judge to rule in his favor, found one, got just what he wanted, and now the case slowly moves on to the Fifth Circuit, and from there to the Supreme Court.

Abbott will, by all appearances, eventually lose yet another lawsuit to the feds, with which he has a .230 batting average to this point.  That's bottom-third of the lineup, and on some teams, worth a seat on the bench (not the judicial one, the pine one).  Another typical lose-even-as-he-thinks-he's-won scenario for Abbott.  And his conservative base will only complain about his waste of taxpayer dollars, activist judges, and frivolous lawsuits when they get beaten.

Update: Judge Hanen is a crank, and the injunction creates lots of hurdles for the administration to clear.  Which was precisely his point.

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