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Obama’s ‘Complete Abdication’ of the Law [Judge Andrew S. Hanen explains immigration overreach]
The National Review Online ^ | February 18, 2015 | By Josh Blackman

Posted on 02/18/2015 2:42:52 AM PST by Cincinatus' Wife

A Texas judge explains that the president’s action on immigration is an attempt to create law from scratch.

When Texas filed a constitutional challenge to President Obama’s executive action on immigration, his supporters scoffed and ridiculed the suit as lacking any merit. First, they argued, states are not injured by the federal policy. Second, they contended that Congress had already given the president the discretion to halt the deportation of millions. Finally, they predicted that the courts would stay out of this important policy debate. The Justice Department’s brief rebuked the suit, alleging that the claims “are based on rhetoric, not law.” Judge Andrew S. Hanen in Brownsville, Texas, disagreed. In a massive 123-page opinion issued on Monday, Judge Hanen thoroughly rejected each of these arguments, vindicating Texas — and 25 other states that joined it — in this challenge to the president’s disregard of the law.

On November 20, 2014, President Obama announced Deferred Action for Parental Accountability (DAPA). This executive action purported to rely on “prosecutorial discretion” to defer the deportations of up to 5 million aliens and grant them work authorization. Only two weeks later, former attorney general, and now-governor Greg Abbott challenged DAPA in federal court in Brownsville. On February 16 — only two days before the Department of Homeland Security would begin accepting new applicants — Judge Hanen ruled that DAPA was unlawful and must be stopped.

Judge Hanen’s methodical opinion begins by explaining how DAPA injures Texas and warrants a remedy in federal court. Specifically, DAPA beneficiaries would be able to receive Texas driver’s licenses. Providing licenses to the aliens comes at a financial cost to the state, only part of which is borne by the applicant. Although it might seem like a trivial cost, any burden, even as small as a dollar, is concrete enough to justify standing to sue. The government countered that Texas could simply change its laws to deny driver’s licenses to DAPA beneficiaries, but Judge Hanen called their bluff. Earlier this year, the DOJ had told Arizona that it would be unconstitutional to deny driver’s licenses to beneficiaries of the president’s 2012 executive action. Texas chose to avoid this constitutional dilemma by challenging DAPA.

After establishing that Texas had standing to sue in federal court, Judge Hanen turned to the lawfulness of the executive action. DAPA was decreed on November 20, 2014, in a series of memorandums, without any opportunity for the public to comment beforehand. Judge Hanen found fatal the government’s failure to comply with the notice-and-comment requirements of the Administrative Procedures Act (APA). But the court went further, finding that DAPA was not an exercise or prosecutorial discretion. Rather, DAPA amounted to a decision to “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” The president was willfully disregarding the laws of Congress that he did not agree with. Specifically, DAPA “does not simply constitute inadequate enforcement; it is an announced program of non-enforcement of the law that contradicts Congress’ statutory goals.” This policy, Hanen concluded, is unlawful and must be halted.

The court did not need to address the constitutional issue, and it did not address whether the president failed to comply with the Constitution’s requirement that he “take care that the laws be faithfully executed.” Judge Hanen, however, showed his hand by explaining that the president had engaged in a “complete abdication” of the law. Rather than enforcing the law, Hanen saw Obama’s actions as making law: The executive is “is not just rewriting the laws; he is creating them from scratch.” This is the role of Congress, not the president. Even if the administration complies with the notice-and-comment process of the APA — unlikely with only 20 months until the next election — such a broad policy of non-enforcement would still run afoul of the Take Care clause.

This case will soon be appealed by the DOJ to the Fifth Circuit Court of Appeals, and ultimately to the United State Supreme Court, but Judge Hanen’s thoughtful opinion has shifted the tenor of the debate. No longer can critics scoff at the argument that DAPA is unlawful. Hanen’s workmanlike decision has moved the arguments from “off the wall” to “on the wall.” The decision from Brownsville, on the literal and figurative border between the federal and state governments, is a first step toward restoring the separation of powers and ensuring that the president faithfully executes the laws.

— Josh Blackman is a constitutional-law professor at the South Texas College of Law, Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare. He blogs at JoshBlackman.com. Mr. Blackman joined an amicus brief in support of Texas on behalf of the Cato Institute.


TOPICS: Business/Economy; Crime/Corruption; Editorial; Government; News/Current Events
KEYWORDS: aliens; amnesty; driverslicense; illegals; immigration; judgeandrewshanen
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1 posted on 02/18/2015 2:42:53 AM PST by Cincinatus' Wife
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To: All
"Conservative champion Sen. Jeff Sessions is accusing President Obama of “systematically” dismantling the nation’s immigration enforcement system — and he’s got proof.

Obama’s attacks on America’s immigration laws are “undermining the very rule of law upon which our nation was founded and upon which its greatness depends,” said the Alabama Republican.

Sessions has put together an exhaustive 50-page report in the form of a detailed timeline that catalogs Obama’s specific assaults on the U.S. immigration system since becoming president. Some conservatives say Obama is deliberately flooding the U.S. with illegal aliens as a means of generating future Democratic Party voters.

The history lesson from Sessions comes as Republicans attempt to overcome a Democratic filibuster of a House-passed Department of Homeland Security bill that blocks President Barack Obama’s executive amnesty............." -- More: Sessions: Obama Dismantling the Immigration System

2 posted on 02/18/2015 2:54:21 AM PST by Cincinatus' Wife
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To: Cincinatus' Wife

Encouragement BTTT!


3 posted on 02/18/2015 3:49:32 AM PST by Guenevere
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Comment #4 Removed by Moderator

To: Cincinatus' Wife

Bookmark for later.


5 posted on 02/18/2015 3:59:19 AM PST by SunTzuWu
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To: Cincinatus' Wife

This type of very detailed, considered opinion is very hard to overturn, because higher courts can’t just waft it away, but have to address every single point with overwhelming legal logic, or the higher court above them will waft *their* arguments away.


6 posted on 02/18/2015 5:28:48 AM PST by yefragetuwrabrumuy ("Don't compare me to the almighty, compare me to the alternative." -Obama, 09-24-11)
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To: All
ANALYSIS The 26-state atty circumlocution is enviable---- Obamacare was argued in their brief (AND mentioned in Judge Hanen's ruling)--- as part of the analysis of Plaintiffs’ standing to bring the case.

Specifically, the 26-states argued the fact that DACA winners can get jobs with US companies and not be counted toward the 50-employee threshold, and the reasonable expectation that DAPA winners will do likewise, make DACA/DAPA employees more desirable than citizen employees.

Inasmuch as the ruling doesn’t affect Obamacare, the exemptions to Obamacare do, in fact, affect the plaintiffs’ standing. (hat tip TXHURL)

==============================================

REFERENCE In his ruling on Monday that upended plans to shield millions of people from deportation, U.S. District Judge Andrew Hanen avoided diving into sweeping constitutional questions or tackling presidential powers head-on. Instead, he faulted Obama for not giving public notice of his plans. The failure to do so, Hanen wrote, was a violation of the 1946 Administrative Procedure Act, which requires notice in a publication called the Federal Register as well as an opportunity for people to submit views in writing.

=================================================

WE NEED TO GO THIS ROUTE: Rhonda Cook one of the ace Atlanta Journal Constitution reporters bird-dogged the corrupt Atlanta teachers story.

Cook reported that the 1980 Georgia General Assembly was concerned about “the increasing sophistication of various criminal elements on the public payroll.” The Assembly then adopted the Racketeer Influenced and Corrupt Organizations Act (RICO), patterned after a similar federal law.

(RICO is often used to try to prove that a legal business was being used for illegal means, and, in at its inception, RICO was used to prosecute drug traffickers or organized crime members).

In recent years prosecutors have applied RICO to government officials accused of using their offices for personal gain---he activites of former and current Atlanta public school officials.

To bring a case under Georgia’s RICO law, there must be at least two underlying felonies — such as fraud, bribery, witness tampering (among other felonies).

RICO allows prosecutors to include multiple defendants charged with various crimes in the blanket indictment, and to charge that govt employees, publicy-funded and publicly-traded entities were allegedly part of an ongoing criminal enterprise...

......such as local govt welfare offices accepting falsified documents, state and/or county public assistance programs, education funding agencies expending tax funds illegally, voter registration agencies accepting falsified documents, lending/banking/credit card companies, and the like.

7 posted on 02/18/2015 7:12:12 AM PST by Liz
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To: All
Dems in Check: Hanen Ruling Clears Way for GOP to Defund Illegal Amnesty
conservativereview.com ^ | 2/17/15 | Daniel Horowitz / FR Posted by cotton1706

Late Monday night, U.S. District Judge Andrew Hanen issued a preliminary injunction on every aspect of Obama’s November 20, 2014 executive amnesty pending the outcome of the lawsuit brought by 26 states against the Department of Homeland Security.

This ruling makes the decision of Senate Democrats to filibuster a clean funding bill – one that funds all lawful aspects of the department – even more indefensible.

Republicans should now go for the kill.

The Hanen ruling itself was not on the underlying merits of the case, rather on the need to grant temporary relief in the likelihood that the states win the case. As Judge Hanen noted, by not granting an injunction, states would “suffer irreparable harm” because “once these services are provided, there will be no effective way of putting the toothpaste back in the tube should Plaintiffs ultimately prevail on the merits.”

However, in addition to the injunction, there are two noteworthy points in this 123-page decision. First, Hanen clearly believes states have standing and sufficient grievances to sue the federal government over executive amnesty, unlike previous judges who have held that state grievances are “speculative.”

Second, it’s quite obvious Hanen believes the states will indeed prevail on the merits.

Before granting the injunction, Judge Hanen launches into an extended deconstruction of all the arguments made by the administration and makes it clear they have no authority to pass their own statutes. He advances almost all of the arguments we have articulated here at Conservative Review® for the past few months. (Excerpt) Read more at conservativereview.com ...

8 posted on 02/18/2015 7:18:28 AM PST by Liz
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To: Cincinatus' Wife

Bttt


9 posted on 02/18/2015 7:19:55 AM PST by uncitizen (They demand we judge them by the color of their skin)
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To: Cincinatus' Wife; 1_Inch_Group; 2sheep; 2Trievers; 3AngelaD; 3pools; 3rdcanyon; 4Freedom; ...
Ping!

Click the keyword Aliens to see more illegal alien, border security, and other related threads.

10 posted on 02/18/2015 7:44:49 AM PST by HiJinx (I can see Mexico from my back porch...soon, so will you!)
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To: HiJinx

The game is up for the street thugs in the Obama admin.

They always go too far, trying to push for as much as they can take.

They have provoked the sleeping giant, and the real war is on. This time the adults weigh in.

Lightweights and grovelers need to get out of the way. This time he’s going down.


11 posted on 02/18/2015 8:50:04 AM PST by Regulator
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To: Liz
Republicans should now go for the kill

That's right. Now.

12 posted on 02/18/2015 8:51:31 AM PST by Regulator
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To: Cincinatus' Wife; Liz
Some conservatives say Obama is deliberately flooding the U.S. with illegal aliens as a means of generating future Democratic Party voters.

I am not one of them. I don't think Obama gives a rat's behind about future Democrat Party voters. I think his motives are FAR more sinister. Liz posted on another thread showing where Jeh Johnson and SoS Kerry signed an order that gives exemption for immigrants that have had 'limited' dealings with terrorists. Whereas they were not allowed in, now they are!

It appears to me that Barak is using every trick in the book to import those that will willingly execute the Dreams of Bill Ayers. The extinguishing of MILLIONS of American lives!

13 posted on 02/18/2015 3:02:24 PM PST by houeto (https://secure.freerepublic.com/donate)
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To: houeto; Regulator

Obama’s worked so hard-— he needs a rest (sob).

It’s high time Obama got some RandR, and a leisurely
stroll out of the WH.....by the Joint Chiefs of Staff.


14 posted on 02/19/2015 4:33:32 AM PST by Liz
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To: Liz
he needs arrest

There! Fixed!

15 posted on 02/19/2015 11:13:30 AM PST by Regulator (Followed by a Short, Unfair Trial Resulting in Deportation)
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To: HiJinx

btt


16 posted on 02/19/2015 3:11:15 PM PST by Dante3
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To: xzins

Even if the administration complies with the notice-and-comment process of the APA — ****unlikely with only 20 months until the next election ****— such a broad policy of non-enforcement would still run afoul of the Take Care clause.


Xzins, is he referring to the 2-years notice to Congress for IDs per Simpson-Mazzoli here? I’m bent on vindicating you :)


17 posted on 02/19/2015 3:30:39 PM PST by txhurl
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To: txhurl

I’m searching the Administrative Procedure Act to see if it contains the same provision. Nevertheless, Simpson/Mazzoli seems pretty clear about any executive action allowing social security access by an employer to someone who is not legally in the country. It isn’t permitted without Congressional review. Somehow, Obama was getting these people jobs and getting them them social security. How did it not also fit Simpson/Mazzoli’s restrictions?

I don’t know, but I’d like to know.


18 posted on 02/19/2015 4:10:01 PM PST by xzins (Support the Freep-a-thon - Free Republic is the Only Voice You Have that Gets Heard)
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To: xzins; Jane Long; Hostage

I remember the parts of Simpson you were showing us: it said 2 years notice must be given to Congress before any new ID cards of any type especially SSNs are printed and distributed. The Federal Register is the place to ‘advertise’ a potus’ intent to do so. I’m really, really thinking it was Simpson-Mazzoli that strung zero up, and you were the guy to discover that here on FR.

OK, I’ll stop braggin’ on you. :)


19 posted on 02/19/2015 4:25:28 PM PST by txhurl
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To: txhurl

It was about the same time as Abbott filed his suit, wasn’t it?


20 posted on 02/19/2015 4:55:08 PM PST by xzins (Support the Freep-a-thon - Free Republic is the Only Voice You Have that Gets Heard)
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