First, a number of outlets are pointing out how biased this week’s ruling was. As Think Progress writes, the question now is whether Hanen’s ruling can be sustained by higher courts that may not be as biased as he is:
Judge Andrew Hanen is a George W. Bush appointee whose past opinions left no doubt that he would leap at the opportunity to strike down a program benefiting undocumented immigrants…
The real question, however, is whether other judges who have not displayed the same hardline attitude towards immigrants — in one opinion, Hanen labeled the government’s decision to allow an undocumented mother to be united with her child without facing criminal charges as a “dangerous course of action” — will follow Hanen’s lead. The Obama administration, and the millions of immigrants who hope to benefit from the administration’s policies, can take solace in the fact that two Republican members of the Supreme Court hinted as recently as 2012 that they do not share Hanen’s views.
Here’s Daily Beast on the content of Hanen’s ruling:
The opinion is activist jurisprudence par excellence.
The opinion is full of highly politicized statements like “there can be no doubt that the failure of the federal government to secure the borders is costing the states—even those not immediately on the border—millions of dollars of damages each year.” Not only is there “doubt” about this Republican talking point—there’s a heated political controversy about it.
Similarly, the court states, as fact, contentious claims like “the states lose badly needed tax dollars each year due to the presence of illegal aliens.” Actually, there’s significant economic data that “illegal aliens” help economic growth. Just ask the citrus industry in California, which depends on the labor of undocumented workers.
Even the rhetoric is partisan. There are no “undocumented” people in Judge Hanen’s opinion; only “illegal aliens.” It’s also a very messy opinion—misspelling the name of Supreme Court Justice John Paul Stevens several times, for example.
How did Judge Hanen even find standing? It comes down to driver’s licenses, which Ruth Marcus at the Washington Post finds preposterous:
It came down — this is not a joke — to driver’s licenses. Texas argued that the expanded class of individuals eligible to remain in the country would be entitled to apply for licenses, and that the $24 fee for obtaining a license did not cover the state’s actual cost. Thus, Hanen found, the states have shown the the program “will directly injure the proprietary interest of their driver’s license programs and cost the states badly needed funds”…
Seriously, the irreparable harm to Texas is that it spends some money on driver’s licenses? Please, you conservatives who applaud this outcome — not another word about judicial activism.
Kevin Drum at Mother Jones puts things even more straightforwardly, calling the opinion “a polemic, not a proper court ruling”:
Judge Andrew Hanen so obviously hates both Obama and his immigration actions that no one is going to take his decision seriously. It’s a polemic, not a proper court ruling. The case will continue its dreary way through Hanen’s docket, but I imagine an appeals court will stay the injunction pretty quickly, and then overrule his inevitable final ruling in short order. The right-wing plaintiffs in this case may have thought they were being clever in venue shopping to get the case before Hanen, but it won’t do them any good. It might even backfire, given just how transparently political Hanen’s ruling is.
This story makes for a good headline, but it probably means little in real life. At most we’ll have a delay of a few weeks in implementing Obama’s immigration orders.
At Daily Kos, Kerry Eleveld reminds Republicans that they still have a Latino vote problem — and halting DAPA for millions of immigrant mothers and fathers is hardly going to make that go away:
As Republicans take a victory lap over the ruling that temporarily halts President Obama’s immigration actions, they have forgotten one thing about their party’s political future: they’re screwed…
But whatever one may think about the rule of law, Republicans are digging themselves a political grave for at least a generation of Latino voters, especially when it comes to national elections. The GOP-led lawsuit from 26 states seeking to block Obama’s attempt to provide deportation relief for up to five million immigrants represents a significant ratcheting up of the Republican assault on the Latino voting bloc…
Now, not only have congressional Republicans gone out of their way to block Obama’s executive actions through the House’s ill-fated Department of Homeland Security funding bill, but Republican governors and attorneys general across the nation are also targeting the immigration community.
That sound you hear is another brick being laid in the wall separating Republicans from Hispanic voters.
Jorge Ramos, the celebrity anchor of Spanish-language TV, agrees:
The Texas decision clearly defines who is against immigrants in the U.S. Latino voters will remember; 2016 is not that far away.
— JORGE RAMOS (@jorgeramosnews) February 17, 2015
And Rep. Luis Gutierrez (D-IL):
— Luis V. Gutierrez (@RepGutierrez) February 18, 2015
The Rep Party is making a critical mistake, setting off advocacy and voter engagement in Latino community..Your victory will be short lived.
— Luis V. Gutierrez (@RepGutierrez) February 18, 2015
So does La Opinión, the most widely circulated Spanish-language daily:
This is a victory for those who think — based on fear, stereotypes and ignorance, — that legalizing the status of undocumented people will drain the U.S. treasury. They think the same way California ex-governor Pete Wilson did 20 years ago. They will also suffer the same backlash…
This is the time for Latino voters to take a look around them and see who is celebrating this ruling, who denounces it and who looks the other way. There is no middle ground here or room for benevolent interpretations.
The human reality cannot be hidden behind supposed legal excuses. Republican legislators and governors are the reason there will be more people deported, and that “Dreamers” who have integrated to society to contribute with their labor are once again on the brink of expulsion.
The impact of this verdict is temporary, as there is still much to resolve, but the indignation it has provoked and the animosity against those who promoted it and are now celebrating will remain for a long time. We cannot forget those soulless and ignorant people who believe that they are doing the country a favor by destroying working families.
A New York Times editorial reminds us what this whole thing is really about — President Obama took action to try and protect families from deportation and separation. Republicans have temporarily blocked that — but they still have no articulated plan for what they’d rather do instead:
With his humane and realistic immigration policy, he is trying to tackle a huge and long-running national problem: what to do with more than 11 million undocumented people who are living, working and raising families here, when the government cannot possibly apprehend or deport all of them. To the contrary, bringing some of these people out of the shadows of illegality would be an economic boon, as noted by the 12 states and more than 30 citiesaround the country (including Brownsville, Tex.) that are defending Mr. Obama’s actions.
On immigration, the Republicans seem to want only to savage the president’s efforts to address a pressing nationwide crisis, just as they have on health care reform. They are good at unleashing rage against Mr. Obama’s supposed lawlessness, but they have no meaningful solutions of their own.
Today, America should have seen protections from deportation extended for young immigrants who came here with their families as children. Instead, a federal judge in Texas late Monday put a last-minute hold on President Obama’s common-sense executive action on immigration…
This political theater distracts from the direct impact that such decisions, or dearth of action, have on our communities. I am disheartened to see a lack of political courage affect our young people. We are toying with their hopes and denying them the opportunity to feel safe in their communities, to contribute to their communities, to grow old in their communities…
Denver will continue to strive to be a city of opportunity for everyone. We will stand shoulder-to-shoulder with our immigrant communities to achieve comprehensive, common-sense immigration reforms that will move this country forward, together. President Obama’s lawful executive action is a solid step in the right direction.
On the legal merits, check out Daily Beast again for how Hanen’s decision seems to disagree with the necessity of prosecutorial discretion — which the Supreme Court as recently as 2012 reaffirmed:
On the one hand, Judge Hanen notes with outrage that DHS “discretion” could allow the government to grant legal residency to all 11 million “illegal” immigrants—something the administration has strenuously denied. On the other hand, the judge complains that DHS’s non-whole-hog policy is creating a new legal regime.
So, doing nothing is bad, and doing something is bad. The only not-bad thing is doing everything: deporting “illegals” without creating any regime for those who aren’t immediately deported.
The court’s legal argument ends up in the same place as its standing argument: the government actually has no discretion at all.
“The Government is charged with the duty of removing them,” the opinion says. “DHS is tasked with the duty of removing illegal aliens.”
And that’s that.
The government, Hanen claims, “is ‘doing nothing to enforce’” the removal laws against a class of millions of individuals.” Such a policy, he claims, is “complete abdication.”
The flaw in Hanen’s analysis, however, is that it frames as “abdication” the kind of decision that law enforcement officials necessarily must make on a daily basis. At the most micro level, imagine that a beat cop is chasing two suspects down the street, when the two suspects split up at a fork in the road. If the cop takes the left fork, it is likely that the suspect who turned right will escape arrest entirely. Yet it would hardly be fair to accuse the cop of “abdicating” his responsibility to chase down both suspects. The cop simply faced a problem of limited resources — two suspects and only one set of legs — and he had to make a decision about priorities.
Also check out Harvard Law Professor Cass Sunstein at Bloomberg View on how Judge Hanen misinterpreted the requirement for the Obama administration to seek public opinion:
With this conclusion, Hanen almost certainly overreached…
The deferred action program calls for immigrants to make individual applications. As the Justice Department explained, the plan provides for “case-by-case discretion,” not a blanket rule. As Hanen himself acknowledged, lower courts have said that agencies need not seek public comment if they remain “free to consider the individual facts in the various cases that arise”…
Judge Hanen was right to focus on the APA and the technical requirements of the law. But he got the technical argument wrong.
For more on the legal analysis, see Ilya Somin at Washington Post.
Will the GOP actually pass a clean DHS bill now? Check out these links from Washington Post.