President Obama might have been surprised on Monday night when a federal district court in Texas blocked his executive action on immigration. Those familiar with his administration’s legal acumen should not be.
Obama’s team has suffered numerous major court defeats in cases it treated publicly as obvious slam-dunk victories. A dozen of Obama’s defeats before the Supreme Court have been unanimous — on topics as diverse as religious liberty, property rights and presidential appointment powers. Each time that happens, it signifies that no knowledgeable person could have reasonably embraced Obama’s legal position.
Judge Andrew Hanen’s order in this immigration case could still be reversed on appeal, and even if it holds up, it is just a temporary measure as the case’s merits are heard. But the injunction was issued because the conferral of legal status upon as many as 5 million people would be, as the judge put it, “virtually irreversible.” Obama himself publicly admitted on 22 previous occasions that he lacked the authority to do this unilaterally, and so those opposing him have what looks like a reasonable case.
It is important to be clear about exactly what is and is not at stake in the ultimate decision on this question. Contrary to most media reports, the deportation of millions is not on the cards, regardless of what happens. Practically none of the 5 million people affected by this decision are or were in any danger of deportation. In 2013 and 2014, 98 percent of the roughly 700,000 people deported from the U.S. fell into categories that are not spared by Obama’s order — criminals, terrorists and people immediately apprehended at the border and removed. The policy of generally leaving illegal immigrants alone if they do not commit other crimes is longstanding and will not change regardless of the decision in this case.
The problem with Obama’s action is that it would effectively confer legal status and issue work permits to millions of people — something that should only and probably can only be done with the consent of the legislative branch. Such an effort may well deserve the support of Congress, but it surely requires it as well. There exists a constitutional channel for major policy changes.
Obama had the chance to pass an immigration bill in the first two years of his presidency. He chose to pursue other priorities instead. He might still get a bill, but he fears that any measure drawn up by a Republican Congress will not be to his liking, and he is probably right. Even so, previous presidents — Ronald Reagan, George H.W. Bush and Bill Clinton come to mind — found ways to work with the opposite party in Congress and pass important legislation, for good or for ill. Obama’s demonstrated inability to work with Congress in general — and on immigration in particular — does not justify his attempted circumvention of the legislative process.
The administration’s defiant statement in the wake of Monday’s court ruling brims with confidence that it will be overturned on appeal. “The district court’s interpretation,” Obama’s spokesman said in a written statement, “wrongly prevents these lawful, commonsense policies from taking effect.”
But as noted above, Obama has a serious credibility problem when it comes to his optimistic assessments of legal matters. If he ultimately loses this one, it will come as a surprise to no one.
