Cross-posted from David Leopold’s piece on Medium:
Yesterday the Obama Administration filed its opening brief before U.S. Supreme Court in U.S. v. Texas, the lawsuit challenging DAPA and DACA expansion, President Obama’s November 20, 2014 executive actions on deportations. In the weeks to come the state of Texas will make its arguments to the Court and so will many others including public officials, families, advocacy organizations and members of Congress. The Supreme Court will hear oral argument in April and it is widely expected to make a decision by the end of June.
Hopefully, as the eight justices sift through the legal arguments, they’ll see this case for what it is; a shameless political attack by Republicans on the President’s executive actions which belongs at the ballot box, not in the Supreme Court of the United States.
Before the ink was even dry on the executive actions — which offer a temporary deportation reprieve to an estimated 5 million undocumented immigrants — Republicans in Congress tried repeatedly to block them — and they failed repeatedly. Taking another route, the state of Texas, joined by mostly GOP governors and attorneys general from 25 states, shopped for a friendly judicial forum in which to launch a legal assault. And they found one in the Brownsville, Texas, courtroom of U.S. District Judge Andrew Hanen, who’d made a name for himself in other cases excoriating the Obama administration for what he described as its “failure to enforce current United States law.” The GOP politicians took page from the playbook of birther queen Orly Taitz who identified Hanen as anti-immigrant and filed a lawsuit in Hanen’s court to stop the federal government from bussing immigrant minors from Texas to temporary detention centers outside the state. As predicted, Hanen blocked DAPA and DACA expansion and was later affirmed by the Fifth circuit, the most conservative appeals court in the country. But not without disagreement. Fifth Circuit Judge Carolyn Dineen King, in a forceful dissenting opinion, concluded the lawsuit was a policy dispute that had no place in court:
The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process. That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested parties across the ideological spectrum — Mayors, Senators, Representatives, and law enforcement officials, among others — but also by the district court’s opinion, which repeatedly expresses frustration that the Secretary is “actively act[ing] to thwart” the immigration laws and “is not just rewriting the laws [but is] creating them from scratch.” The majority’s observation that this suit involves “policy disagreements masquerading as legal claims” is also telling. Whether or not the district court’s characterization of this case is accurate — though the record number of removals in recent years demonstrates that it is not — to the extent some are unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the political process, not in litigation.
This week, as if to prove the point that this is a political exercise, Speaker of the House Paul Ryan announced that the House would vote on whether to file an amicus brief in the Texas case — on behalf of the GOP Governors and Attorneys, of course. That will allow Republican members to get in on the action — and burnish their voting records credentials for their anti-immigrant constituencies. Republicans couldn’t be any more blatant about their political agenda.
At its core, the GOP lawsuit relies on a judge’s willingness to credit political diatribe over the plain language of the president’s deferred action policy.The GOP’s ability to temporarily block DACA expansion and DAPA were the result of Judge Hanen’s enthusiastic willingness to ignore what the deferred action guidance said in favor of what the Republican governors and attorneys general say it says. As Judge Stephen Higginson reminded his 5th Circuit colleagues last May, “On this record, as well as focusing below on the four corners off the November 20 [DACA expansion and DAPA guidance], I would say [the Obama administration] is adhering to law, not derogating from it.” Like his colleague Judge King, Higginson concluded that Texas’ attack on DAPA and DACA expansion should be thrown out of court. Higgenson reserved has harshest words for Judge Hanen — who entered the order blocking DAPA and DACA expansion — all but calling him out for playing fast and loose with the law and facts — something Professor Anil Kalhan has cogently described as Hanen’s “Judicial Truthiness.”
As Judge Carolyn King lamented in November, “a mistake has been made.”
Now it’s up to the Supreme Court to fix it.