A federal judge’s decision blocking President Obama’s executive action to shield up to 5 million immigrants from deportation undercuts a White House push to play down concerns about the legitimacy of the directive.
Regardless of whether the temporary injunction late Monday by U.S. District Judge Andrew Hanen stands — the United States Court of Appeals for the 5th Circuit in New Orleans will soon decide how to proceed — it did lasting damage to a sales pitch already met with suspicion from illegal immigrants who would qualify for new protections.
The administration has been scrambling in recent weeks to convince those living in the U.S. illegally to come “out of the shadows.” The White House had planned on launching sign-ups Wednesday for the expansion of Obama’s program granting deportation deferrals to illegal immigrants who moved to America as children.
Instead, the White House and its defenders were forced to recalibrate their message as Hanen effectively put the brakes on the implementation of the most sweeping overhaul to the immigration system in decades.
“Don’t panic,” Debbie Smith, associate general counsel at the Service Employees International Union, said in a direct appeal to those considering enrollment in the Obama immigration programs. “We think this is a time out, a bump in the road.”
“Preparation for executive action is going full steam ahead,” insisted Cristina Jimenez, managing director of United We Dream, the nation’s largest immigrant youth-led organization.
However, uncertainty persists at a time when the Obama administration was banking on clarity.
The judicial fight also comes as the White House and Senate Democrats engage in a standoff with Republican lawmakers over funding for the Department of Homeland Security.
Conservatives insist the court ruling gives them ammunition to roll back the president’s executive action on immigration, but they still don’t have the 60 votes in the Senate to get such legislation through the upper chamber.
Hanen, the South Texas judge, did not rule on the legality of the executive action taken by Obama in November. He simply said the president’s blueprint should be put on hold while 26 states pursue a lawsuit arguing that Obama lacked the authority to make such a decree to governors already dealing with budget shortfalls.
The Fifth Circuit Court is now the gatekeeper for whether Obama’s power play on immigration will proceed. It will have to decide whether to grant the Justice Department’s expected request for a stay on the district court ruling.
Typically, the court would issue a ruling on such a matter within a few weeks, legal scholars said, though that timeline could be rushed given the emergency nature of the crisis.
If the circuit court sides with the Obama administration and grants the stay, the immigration program will go forward as planned. If not, the federal government would effectively have to wait to implement it.
The circuit court is expected to rule first on the stay before making a final decision on the merits of Hanen’s ruling.
Hanen has sat on the federal bench since being appointed by George W. Bush in 2002. He has been known to take a particularly skeptical view of the Obama administration’s approach to immigration law.
The core of Obama’s legal defense is that he is exercising prosecutorial discretion, citing historical precedent for the executive branch deciding whom and whom not to deport.
Time and again, however, the president has told frustrated immigration advocates that he lacks the authority to issue deportation relief to millions of illegal immigrants. That calculus changed in the buildup to the 2014 midterms, but Obama’s previous resistance to such action has not been forgotten by the illegal immigrants the White House is now trying to recruit.
“We have to recognize that this is what happens when the president decides to act alone instead of trying to work with the new Congress to find a permanent legislative solution to those who are here without legal status,” said Alfonso Aguilar, executive director of the American Principles Project’s Latino Partnership.
“Sadly, he did not take into account that the hopes and aspirations of millions of undocumented immigrants could be shattered if his administration’s actions were invalidated by the courts,” Aguilar added. “While this decision is not final, it generates significant anxiety for millions of immigrant families across the country.”
The White House has repeatedly pointed to multiple rulings by federal appeals courts in the 1990s rejecting lawsuits brought by states claiming federal authorities were not enforcing immigration laws.
For his part, Hanen attempted to showcase why the legal concerns over the Obama program presented a fundamentally different argument.
“This court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such non-enforcement decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual,” Hanen wrote. “The award of legal status and all that it entails is an impermissible refusal to follow the law.”
The Hanen ruling does not affect Obama’s 2012 deferred-action program for so-called Dreamers, just the expansion of that effort and a far larger directive to protect the parents of U.S. citizens and permanent residents from deportation.
However, the Obama administration concedes that many of those eligible for the 2012 program did not enroll because of fears their new status would get overturned.
Now White House officials are concerned about a similar perception, only on a much larger scale.
“This lawsuit is about stoking confusion,” a senior administration official told the Washington Examiner. “It’s a political effort to create doubt in what the president has the legal authority to do. It won’t work.”
