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The Criticism Continues: Respected Legal Scholar and WaPo Wonkblog Take Down Texas Lawsuit Ruling

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Judge Hanen’s Decision Faces Withering Criticism

Washington DC – In the wake of Judge Andrew Hanen’s ruling on the Texas immigration lawsuit, many have been quick to blast Hanen’s poorly-reasoned and politicized decision to stop millions of immigrants from applying for long overdue relief.

Today, respected legal scholar and University of Chicago Law school professor, Eric Posner writing in Slate, and Max Ehrenfreund of the Washington Post’s WonkBlog add to the mounting criticism of Judge Hanen’s legal and policy arguments for blocking the expanded DACA and new DAPA programs that would benefit Dreamers as well as parents of American kids.

Posner piece is entitled, “Faithfully Executed: Obama’s new immigration program is perfectly legal and should not be blocked.”  See excerpts below:

The law is the law, and the law governing Judge Hanen’s own authority is clear. He cannot issue a preliminary injunction based on a prediction about how the government will act. He can only wait and allow the DHS to leap into action. If plaintiffs subsequently gather evidence that DHS agents actually do not use discretion but instead apply the DAPA criteria formulaically, only then can they seek an injunction. Hanen, in seeking to restrain the supposedly out-of-control executive branch, exceeded his own authority.

The deeper problem with Judge Hanen’s reasoning is that, as he explicitly acknowledges, the president really does have the constitutional authority to decide to go after violent felons and leave everyone else alone. That is what presidents have done for decades. While Hanen claims that DAPA ‘represents a massive change in immigration practice,’ as he admits elsewhere, it is just a formalization of the status quo. He’s functionally telling the federal government, Go ahead and do it but don’t tell us you’re doing it. The effect of Hanen’s ruling is to prevent DHS from telling people whom it’s planning not to deport that it’s planning not to deport them. True, without this formal statement, these people will not be able to get legal jobs. But they will continue to work illegally.

Moreover, Judge Hanen’s ruling creates procedural hurdles that, in the context of this case, serve no purpose whatsoever. Notice of DAPA has been given to the public. Comments aplenty have streamed over the media. If DAPA went through notice and comment, it would emerge unchanged on the other side. The formal notice-and-comment procedure is just a recipe for delay…

…Judge Hanen has inflicted a lot of misery and disappointment on people without good reason. His injunction came just before people were set to apply for protection under DAPA, and the program is now on indefinite hold. Let’s hope the 5th Circuit Court of Appeals acts expeditiously to reverse his decision.

Posner’s sentiment is further echoed by Ehrenfreund of the Washington Post’s WonkBlog who discredits key pieces of Hanen’s ruling on the policy merits (or lack thereof).  See excerpts below:

1. Undocumented immigrants don’t cause crime

Hanen writes that crime has come along with illegal immigration, causing a problem for the states that sued the administration in the case. ‘This continual flow of illegal immigration has led and will lead to serious domestic security issues directly affecting their citizenry,’ he writes. ‘This influx, for example, is causing the states to experience severe law enforcement problems.’

In fact, data from the U.S. Census show that despite the fact that many immigrants are poorly educated young men, they are less likely to find themselves in prison than citizens born in the country, regardless of their national or ethnic origin, as Rubèn Rumbaut of the University of California, Irvine has documented. The more time that immigrants spend in the country, the more likely they are to be convicted and imprisoned, and their children’s rates of incarceration are more similar to the native population’s, suggesting that with assimilation, immigrants become more likely to commit crimes…

2. Undocumented immigrants aren’t coming across the border in droves

‘Illegal aliens move freely across the border, thus allowing — at a minimum — 500,000 illegal aliens to enter and stay in the United States each year,’ Hanen writes. Here, his statistics are simply out of date. That was true during the Clinton administration, but the number of undocumented immigrants living in the United States reached its highest point in 2007, according to the Pew Research Center. The figure declined slightly after that and has since remained constant, at roughly 11.3 million. Most of them have been here for at least ten years…

3. The government does not purposefully allow people into the country without papers

‘In many instances, the Government intentionally allows known illegal aliens to enter and remain in the country,’ Hanen writes. The judge goes on to describe how after apprehending a migrant, federal authorities will sometimes schedule a hearing instead of immediately deporting them. In that sense, the government does allow illegal immigrants into the country, and if they don’t show up for their hearings, they might remain here indefinitely, as Hanen notes.

There wouldn’t be a problem with that sentence if Hanen had written ‘alleged’ instead of ‘known,’ but of course, you can’t always deport someone just because a law enforcement officer believes them to be undocumented. Plenty of U.S. citizens have been forced to prove their citizenship while being detained on suspicion of illegal immigration…

4. Increasing security at the border probably won’t help

‘The Court finds that the Government’s failure to secure the border has exacerbated illegal immigration into this country,’ Hanen writes. Both halves of that sentence raise questions. Not only is it unclear what the judge means by ‘a failure to secure the border,’ but also, increased security might not reduce the number of undocumented immigrants living in the country.

Since 2000, the federal government has built close to 700 miles of fence along the southern border, noted Homeland Security Secretary Jeh Johnson in a speech last year. He also said that the number of agents, aircraft and remote surveillance systems on the border has doubled, and that the government has also deployed nearly 12,000 underground sensors and eight drones. During that same period, the number of people authorities are apprehending has declined by 71 percent, suggesting that far fewer people are attempting to cross illegally…

…Yet it is not clear whether that improvement in security has reduced the number of undocumented immigrants living in the United States, whom the states suing the federal government describe as an onerous burden. That’s because the improvement in security at the border has likely had an unexpected consequence. To the extent that migrants believe that crossing the border has become harder, they are not only less likely to attempt to cross it heading northward, but they’re also less likely to leave the United States, knowing it will be harder for them to come back if they need to. The fact that more undocumented immigrants are settling in the United States, and that the average length of time that they have lived here is increasing, is evidence for that theory.

If so, increasing expenditures on border security may well turn migrant workers into permanent illegal residents, discouraging the kind of ‘self-deportation’ that Republicans such as former Massachusetts Gov. Mitt Romney have argued would be the best solution to the immigration debacle.”

Frank Sharry, Executive Director of America’s Voice, commented, “Republicans went shopping for a Republican judge in order to get a Republican decision anchored in Republican talking points.  And even though the next stop for this case is the conservative Fifth Circuit, we hope and pray that the judges who are asked to consider the merits and the facts care more about applying the law and upholding  judicial integrity than in pleasing fellow Republicans.”