Posted on 02/18/2015 8:11:12 AM PST by xzins
The 26 states that sued President Obama over his unilateral amnesty plan for illegal aliens won a major battle on Monday when a federal judge issued a temporary injunction against the plan’s implementation. In a fitting bit of irony, the order was issued on President’s Day, a day when we remember the great men who fulfilled their duties as heads of the second branch of government.
In his order, Judge Andrew Hanen enjoined Jeh Johnson, secretary of the Department of Homeland Security, from implementing “any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents ‘DAPA’) program as set out” by Johnson in his Nov. 20, 2014 memorandum that executed the president’s announced plan. In other words, the Obama administration can no longer implement the executive actions Obama took on immigration.
Judge Hanen’s reasoning is set out in an opinion that is over 120 pages. But in essence, as the judge himself summarizes, the injunction is being issued “due to the failure of the defendants to comply with the Administrative Procedure Act.” As I explained when the lawsuit was first filed by the states back in December, the Administrative Procedure Act governs the issuance of new rules and regulations by government agencies. It requires public notice and opportunities to comment before a substantive rule can be enacted and bars arbitrary or capricious actions by agencies.
From almost the very first page of the opinion, Judge Hanen recites the problems the states are experiencing because of the federal government’s refusal to enforce our immigration laws, which include “severe law enforcement problems” that “ha[ve] led and will lead to serious domestic security issues directly affecting their citizenry.” He specifically cites the kidnapping at gunpoint of a Brownsville, Texas university student by “a human trafficker a few miles from this Courthouse” who was “forced to transport the trafficker and an alien who had just crossed the border.”
The most crucial decision made by Judge Hanen in this early stage of the lawsuit is that, contrary to the Justice Department’s claim, the states are legally allowed to bring this lawsuit because they are going to suffer concrete, measurable costs from the Deferred Action for Parents of Americans and Lawful Permanent Residents program, that is to say, they have standing. For example, it will cost states millions of dollars in mandatory fees set by federal law when these states have to process additional driver’s licenses. The federal government had tried to argue these fees were “self-inflicted” because states could simply deny licenses to illegals–but based upon other cases the Department of Justice has brought, it is clear that the administration doesn’t want states like Arizona to be able to have that option. It’s a bit like Henry Ford’s sales pitch: “Any customer can have a car painted any color that he wants as long as it is black.”
As Hanen pointed out, “legalizing the presence of millions of people is a ‘virtually irreversible’ action once taken.”
Hanen points out further irony by citing a question from a Department of Homeland Security civics test for naturalization applicants. At the very same time the administration is asserting power over state driver’s licenses because of federal authority over immigration, the Department’s test tells applicants that one of the powers that “belong to the states” (not the federal government) is giving out driver’s licenses.
Hanen’s lengthy opinion provides an extensive, well-researched, well-written review of the history of the Obama administration’s actions in the immigration area and points out the many problems caused by its lack of enforcement and overriding of federal immigration law. Hanen agrees that Homeland Security does have discretion “in the manner in which it chooses to fulfill the expressed will of Congress” in federal immigration law. But it cannot “enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them.” In fact, the Homeland Security secretary “is not just rewriting the laws; he is creating them from scratch.”
The states don’t disagree that the federal government has exclusive jurisdiction over immigration, but they argue “that the Government has abandoned its duty to enforce the law.” Hanen concludes that “this assertion cannot be disputed.” In fact, “if one had to formulate from scratch a fact pattern that exemplified the existence of standing due to federal abdication, one could not have crafted a better scenario.”
Although Judge Hanen did not issue a decision on the merits, he did issue an injunction because he found that the states were substantially likely to succeed on the merits of their claims when the case goes to trial. He also found they met the other three elements necessary for issuing an injunction: 1) a substantial threat that the states would suffer irreparable injury if the injunction were denied; 2) that the threatened injury outweighs any damage the injunction might cause the government; and 3) that the injunction will not disserve the public interest.
As Hanen pointed out, “legalizing the presence of millions of people is a ‘virtually irreversible’ action once taken.” Thus, an injunction is appropriate because “there are millions of dollars at stake in the form of unrecoverable costs to the States if [the Deferred Action for Parents of Americans and Lawful Permanent Residents program] is implemented and later found unlawful.”
What happens now? Judge Hanen ordered both sides to “meet and confer and formulate and file” with the court by Feb. 27 an agreed-upon schedule for how the case should proceed. The Justice Department will also no doubt file an emergency appeal with the Fifth Circuit Court of Appeals asking that the injunction be stayed (that is, thrown out). If that happens, it would put the case in the status of proceeding to trial while the amnesty plan is being implemented.
But there is no doubt that Judge Hanen understands the “importance of these issues to millions of individuals – indeed, in the abstract, to virtually every person in the United States.” Given “the serious constitutional issues at stake,” Hanen made it clear he is going to ensure that “each side has had an opportunity to make a complete presentation” before he issues a final decision.
Simpson/Mazzoli is very clear, but it also specific to employers and social security access. That is valid concern when employing illegals, so it was added back when Simpson/Mazzoli was written.
The huge point in Simpson/Mazzoli, though, is that Congress intentionally with foresight imagined a president using executive action to circumvent Congressional law. That’s a stunning provision all by itself. But they also saw it happening in this area of illegal amnesty, and required it be subject to the Congress approving it.
If the Admin Procedure Act says essentially the same thing only in broader terms, then what we have is a legislative check on the president’s so-called ability to rule by executive orders.
Congress has foreseen such lawlessness and ruled it out of order, I hope.
It is supposed to have most of its justices appointed by republicans. Napolitano on Fox last night assumed because of that that the 5th circuit would uphold Judge Hanen.
Napolitano was excited, so his feeling could have gotten in the way of his logic, but I don’t think it is irrational to think that congress has at some point in time addressed via legislation a lawless president abusing the executive order power that he has. It makes sense to me that Congress would have tried to address the constitutional concern that the president “faithfully execute” the laws passed by Congress.
Wouldn’t it be something if Hansen used the section of Simpson-Mazzoli about 2 years notice to Congress of issuing new IDs to illegals?
Overall, I think Abbott, Hanen and the rest of our side exude a 90% probability this injunction will prevail.
The RATS seem to have about a 50% confidence. Judge Jeanine said zero ‘checkmated’ himself.
Do you think we really just avoided 5mil+ new RAT voters?
I am so ready to pop a bottle of champagne once I’m convinced NOLA 5th will uphold this injunction and literally run out the clock on zero and the ‘16 election.. and True the Vote, Virginia Voter’s Alliance etc will be ready to challenge any DAPAs who try to register to vote with their new SSNs and DLs, should they get them another way.
It’s not over until he’s gone.
Obama knew the law, then he broke it and dared Congress come after him. Nobody did. It took a Governor to do it, and a very brave federal judge.
Look at how brazen the federal courts have been with gay marriage. They know the 10th A, and they just flout it. They barely justify it with written opinions.
I don’t put anything past this guy. 70% of DEMS think American jobs should go to Americans first, and yet he’s balls to the wall on immigration.
If he was willing to flout Congress, what’s a single federal judge matter?
I’d bet a quarter they find a way around this guy too, or they just ignore him.
What does the 5th Circuit look like?
If the 5th upholds, don’t the RATS have to proceed to the 9th before going to SCOTUS? If so, zero ran out the clock on himself!
If those 5 million new RAT voters are now undeliverable, in the left’s estimation, that should materially alter their ‘16 strategy and we should see manifestations of that pretty soon, right?
And we don’t even know what else he has done illegal until he’s out of office.
The 5th circuit is composed as follows:
Number and appointed by:
3 - Clinton
6 - Reagan
6 - Bush, GW
3 - Bush, GHW
2 - Carter
3 - Obama
2 - Vacant
http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Fifth_Circuit
Anything we can do to stall the little monsters is a win.
Regarding so-called federal government power to regulate immigration, both Thomas Jefferson and James Madison, Madison generally regarded as the father of the Constitution, had written that no such delegation of power exists.
As mentioned in related threads, here is the relevant exerpt from Jefferson’s writing.
“4. _Resolved_, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the — day of July, 1798, intituled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force [emphasis added].” —Thomas Jefferson, Draft of the Kentucky Resolutions - October 1798.
And here is the related excerpt from the writings of James Madison in Virginia Resolutions.
"That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the "Alien and Sedition Acts" passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, ...…
… the General Assembly doth solemenly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people [emphasis added]. ”— James Madison, Draft of the Virginia Resolutions - December 1798.
In fact, regardless that federal Democrats and RINOs will argue that if the Constitution doesn’t say that they cannot do something then they can do it, note that the Supreme Court has condemned that foolish idea. More specifically, the Supreme Court has clarified in broad terms that powers not expressly delegated to the feds via the Constitution, the specific power to regulate immigration in this case, are prohibited to the feds.
”From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added].” —United States v. Butler, 1936.
So while the idea that Obama cannot pardon illegal immigrants without the legislative support of Congress is at least conceptually correct, it remains that the feds cannot legislatively address any aspect of immigration without the required consent of the Constitution’s Article V 3/4 state majority via an immigration amendment to the Constitution imo.
The idea has been that one can't rule on naturalization without first ruling on immigration, and that is also covered in Art I, Section 8 when it says "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Is it possible to separate immigration and naturalization? I think so, but I also see how they are intricately connected.
Madison was a delegate to the Constitutional Convention and kept a log of all debates. So it’s very significant when Madison argues that the delegates didn’t grant Congress the specific power to regulate immigration regardless of the “Uniform Rules of Naturalization” clause (1.8.4).
I don’t know. I know that California right now would be letting multiple millions of immigrants in, and they would then fan out through all the other states.
California’s corrupt socialist state government is trying to use the votes of illegals to keep in power just like Obama is trying to do at national level for Democrats. Corrections welcome.
A part of the problem with illegal immigrants everywhere in the USA is that constitutionally clueless state government “leaders” evidently think that the corrupt feds have the constituitonal authority to regulate immigration. The real situation, as evidenced by the writings of Jefferson and Madison concerning “government” power to regulate immigration, is that the states uniquely have the power to do so. But what good is that power when you wrongly think that federal laws to regulate immigration trump state laws to regulate immigration?
If this California had the power to control immigration, it would allow 10 million immigrants a year into the USA. Then the rest of the US would be stuck with their decision to dump all those people on the rest of the nation.
No. The 9th and the 5th are two different areas of geographical jurisdiction. Something appealed from the 5th goes to SCOTUS.
Someone posted on a thread the other day (sorry, don’t recall which FReeper it was), that Justice Scalia covers the 5th circuit.
Now that’s GOOD NEWS!!!
HISTORY REPEATS ISELF
With over 92 million Americans out of the work force, Obama open the gates to 15 millions new illegal immigrants.
We already have MEXIFORNIA and Obama is advancing the Mexican "Reconquista” of U.S. Very tough times are coming for Black America.
"Those who ignore history are damned to repeat it."
The KKK party against Blacks...Obama is taking out from the Blacks to give it to the illegal migrants.
He will do anything to harm the country he hates it his actions prove it he’s very dangerous.
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