Posted on 02/18/2015 2:42:52 AM PST by Cincinatus' Wife
A Texas judge explains that the presidents action on immigration is an attempt to create law from scratch.
When Texas filed a constitutional challenge to President Obamas 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 Departments 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 presidents 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 Hanens 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 drivers 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 drivers 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 drivers licenses to beneficiaries of the presidents 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 governments 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 Constitutions 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 Obamas 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 Hanens thoughtful opinion has shifted the tenor of the debate. No longer can critics scoff at the argument that DAPA is unlawful. Hanens 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.
Within days. Zero doesn’t write his exec memo $hit, his lawyers do. Then other lawyers review it. He just alienated the whole 5 million illegal base that RATS were depending on for ‘16, over a non-researched, unvetted power-grab.
All that Yanqui gold at the end of their rainbow, evaporated. All their personal data, everywhere, should States decide to take up deportation again. Think they’ll venture anywhere near a polling booth? Nieto.
All because they listened to the Castro, Guiterrez, Ramos Azatlan Rabble-Rousing milagro-promising race pimps.
They will regret not having stayed in the shadows while submitting VISA applications from Mexico 5 years ago.
Si, Si Puede suckered them as bad as Hope & Change for los Gringos.
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