A Texas judge’s freeze on Barack Obama’s plan to shield millions of immigrants from deportation likely won’t last long, legal experts say, meaning Republicans who oppose the executive action will have to look away from the courts for help.
Federal judge Andrew Hanen issued an injunction late Monday night that prevented the Department of Homeland Security from implementing a program that could defer deportations for more than 4 million people, but the courts have long sided with presidents on such issues, Cornell law professor and immigration expert Steve Yale-Loehr said.
Not only have presidents as philosophically opposed as Ronald Reagan and Barack Obama deferred deportations without issue in the past, but Congress and the courts have long agreed that “the president has broad executive authority” to decide how to enforce immigration laws, Yale-Loehr said.
“There’s a lot of case law that says immigration agencies have leeway to interpret these rules,” Yale-Loehr said. “Deferred action as a program has existed for many years, and the administration argues that applying it to mothers and children is an interpretation of the rules.”
The quest to reverse Obama’s immigration actions is “likely to fail” in court, Hanen said. The higher court could overturn the injunction as soon as the issue reaches its chambers, and the White House has already promised to appeal. But the victory of 26 Republican-led states who are fighting the law may not even live that long.
The “narrow” scope of Hanen’s ruling means the Obama administration may not have to rely on another round of judicial boxing to begin giving young migrants quasi-legal status.
“His decision did not go so far as to find these programs unconstitutional,” Greg Chen, director of advocacy for American Immigration Lawyers Association said. “He simply ruled on procedural grounds that the government didn’t follow administrative procedural act rules in how it went about implementing the programs.”
Hanen halted the program in part because the Obama administration didn’t do its paperwork, the experts said. “All the administration would have to do is publish a notice saying they’re soliciting comments about the program,” Yale-Loehr said, and the it would satisfy the main demands made of it by the court.
For now the program is on hold, and “there is uncertainty in this time period – in the short term, that is,” Chen said, adding that he expects the decision will be reversed and the program ultimately “upheld as constitutional”. The AILA recommends that people who are eligible prepare to apply for the program.
“People need this relief now and have been waiting for years for Congress to act.”
Few disagree that the president has the authority to defer deportations, even among those inclined to condemn Obama’s decisions. In November Carl Hampe, a lawyer who worked to develop immigration policy for Reagan, told the Guardian that Obama is “probably proceeding within his legal authority, even though he would be at its outer boundaries”.
Those advocating for assimilating young immigrants into American society instead accuse Judge Hanen of pushing the outer bands of his authority. Pablo Alvarado, executive director of the National Day Laborer Organizing Network, accused Hanen of “judicial vigilantism” in a statement, but expressed faith that “the corrosive hijacking of government to pursue a native agenda should not, and most likely will not, be tolerated in federal courts.”
Illinois congressman Luis Gutiérrez, a Democrat and ardent campaigner for immigration reform, gave a speech in Chicago proclaiming “we may be delayed but we will not be deterred”. He then continued a pre-planned workshop to teach people about the program.
Appointed by George W Bush to the federal court in south Texas, Hanen has emerged in recent years as a more colorful arbiter of jurisprudence than many of his peers consider acceptable. In 2013, he accused federal officials of helping achieve “the criminal conspiracy” of an immigrant mother’s attempt to reunite with her child: “Instead of arresting [her] for instigating the conspiracy to violate our border security laws, [the government] delivered the child to her – thus successfully completing the mission of the criminal conspiracy, he wrote.
In Monday’s decision, he asserted that Obama’s immigration plans could cause “irreparable harm” to states, such as millions of dollars in driver’s license fees, and that such executive action would unleash irreversible changes: “There will be no effective way of putting the toothpaste back in the tube.”
Yale-Loehr said he thought Hanen was exaggerating.
“The whole question of irreparable harm is something that normally applies to life and death situations, not something so mundane,” he said, and it would be possible to make changes after the program began.
Melissa Crow, legal director for the American Immigration Council, said Hanen “in essence cherrypicked the evidence” to argue that the states even have standing to question the president on the issue.
Karen Tumlin, managing attorney of the National Immigration Law Center, had little to say but a blunt rebuke of Hanen’s decision: “The ruling is so far outside the legal mainstream that we are confident that these programs will be upheld.”
Tumlin and others encouraged those eligible to gather their documents and prepare to apply for the expanded program, whose second half is scheduled to begin on 19 May. Tumlin said that it may take about three weeks for the appeals court to decide the case, should the Justice Department pursue an emergency appeal.