The 25 states’ lawsuit against President Obama’s executive action received its first hearing from federal judge Andrew Hanen in Brownsville, Texas last week — you can see our report on the judge and his potential bias on the topic here. At the New York Times today is an editorial emphasizing many of the report’s points, namely:
- The anti-immigrant states that joined the lawsuit went shopping for a judge before the case ended up with Hanen, and he may be receptive to it given comments he’s made before about immigrants and the border
- If he rules against executive action, his ruling is not likely to go far before a higher court will reverse. Prosecutorial discretion (the concept behind executive action) is a well-established tactic that all presidents since Eisenhower have used on immigration
- Though a Hanen ruling against executive action would likely throw the program into some array, immigrants should not fear stepping forward and signing up; mass support is the best way of protecting both the program and those who sign up for it.
Read the full NYT editorial here or below:
The first thing to know about the lawsuit brought by two dozen states to block President Obama’s executive actions on immigration is that it is a meritless screed wrapped in flimsy legal cloth and deposited on the doorstep of a federal district judge in Brownsville, Tex.
The second thing to know is that the judge, Andrew Hanen, may well look kindly on the suit. He made news in 2013 with a politically charged ruling accusing the Obama administration of criminally conspiring with Mexican drug cartels to smuggle children over the border (he really said that), which is surely why the plaintiffs like their chances.
The judge held the first hearing in the case on Thursday and could rule as early as next month. If he blocks Mr. Obama’s actions — which seek to protect millions of immigrants from deportation and to grant them permission to work — this would complicate things for the administration, which is planning to start signing people up for the programs in February.
But there is a third thing to know: Sound legal scholars are not too worried that Judge Hanen alone will be able to kill the administration’s programs and force the White House to abandon other reforms of enforcement policies. Even if the judge buys the plaintiffs’ bogus line, the government still seems likely to win on appeal to the United States Court of Appeals for the Fifth Circuit or the Supreme Court. The states’ standing to sue is dubious; their claims of damage are speculative at best. There is no evidence that executive action will do anything to increase illegal immigration, and there is clear data showing that giving work permits to immigrants who are already here helps, not hurts, state economies.
Above all, the programs rest on a rock-solid legal footing: the principle of prosecutorial discretion, under which Mr. Obama’s Homeland Security Department intends to use its limited resources to go after dangerous, high-priority immigration violators instead of low-priority ones. Upending that principle — and the Supreme Court said as recently as 2012 that “a principal feature of the removal system is the broad discretion exercised by immigration officials” — could sow broad confusion over all the executive branch’s enforcement decisions, creating what one immigration-law expert concisely called “a royal mess.”
So things will likely be O.K., but they may get bumpy in the meantime.
Potential applicants for deportation relief and their families need to hold firm and not let themselves be confused or bullied into not coming forward. The success of the Obama programs, one of the most positive developments on immigration reform in years, will depend on wide participation.
The Obama administration has an urgent job this year: setting up an ambitious, smoothly functioning effort that could grant relief to more than four million people. All the anti-immigrant side has to do is keep trying to block reform, and, failing that, to spread chaos, confusion and anxiety.
The country is not going to deport everybody — even many Republicans admit that, but they continue to refuse to do anything to fix the system. After Mitt Romney’s disastrous presidential pose on “self-deportation,” the party went through a stretch of sobriety and sought to enhance its damaged brand by getting in line with the public, which rejects mass deportation in favor of having immigrants come forward, pay taxes and get right with the law. But now we have Republican governors and attorneys general pressing a 25-state lawsuit, joining their counterparts in Congress who are waging a legislative assault on Mr. Obama’s executive actions. The party has reverted back to its original strategy: intimidation, exclusion and fear.
