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.
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.
To give Obama a DISTRACTION ?
From what?
While I have some hope that the 5th district appeals court might uphold Judge Hanen’s ruling, I have little hope that it might prevail in the US Supreme Court. I’m sure Justice Roberts will by some twisted sophistry vote with the liberal members of the Court that Obama can in fact act like an emperor.
If the process follows a normal calendar, Obama might be gone by the time the Scotus rules. Napolitano was saying last night that he thinks if the 5th circuit sides with Judge Hanen, that the Scotus very likely will not even take it up. That gets Roberts off the hook, too.
I was hoping for something like that. Even if Obama and his little dog Holder appeal, the Courts will run out the clock on them.
Do you have a link to Hanen’s entire opinion? I can’t seem to find it.
I think it’s out there somewhere. I’ll look.
Thanks, Enterprise. I wanted to see how exactly he argued the Administrative Act portion of his opinion.
https://www.documentcloud.org/documents/1668197-hanen-opinion.html
The full opinion - the link is not an official source, but the document appears to be genuine.
Venting...thanks
If judges and elected? officials can’t stop this joke of a “tax”
Than what chance does the little guy have?
I don’t live in a city so maybe everyone there loves Obama or what he has done?
Although, even the libbers are admitting most of key elements of this were all based on lies.
Anyhow, the people who are supposedly are against this overwhelmingly out number those that are for this?
Yet here we are? Apparently we got snookered? by the left? into this and now we are powerless to do anything about it?
The Tea Party has left the building?
Where is the big revolt from the Tea Party and or every day citizens who are tired of big governemnt? They are all in line signing up for Obama Care that’s where they are.
I guess they lost? I guess we all lost? So now we comply?
This would not have had to be a bloody revolt even. Just a mass refusal to sign up for a unjust tax. No Tea in the Harbor. Just a mass refusal to pay a unjust “tax” arrived at through lies and deciet.
This all tells me at the end of the day we are all basically powerless.
Whats nexted?
Global Warming Tax?
Internet Tax?
$8 gallon gas tax?
You will comply to what we feel is best for you or we will take it from you...tax?
What is to stop them. Just declare it a tax and viola problem solved.
Even if “our guy” wins what can be done?
Pandora is out of her box!
I must admit that in the end, while i might take the 2% hit once or twice, i will have no choice but to “live” with it and whatever they decide to foist on us?
If it’s illegal Obama does it.
Thanks to both of you. I’ll be searching it for the judge’s thoughts on the Admin Act. Some are questioning his neutrality on the opinion, and others, as in this article, question that this law is a ‘gray area’.
I’m concerned more with the text of the law he uses and his logic in applying it. I’m betting it’s rock solid.
There is a similar provision in the Simpson/Mazzoli Act signed by President Reagan. The president is prohibited from any executive action that would permit employers to issue social security access to illegal immigrants. It sounds like that provision finds its origin in this Administration Law Act.
If Obama does it, it's illegal.
There - fixed it.
I wonder if he looked first at the Simpson/Mazzoli Act, and researched it further to get to the Administrative Procedure Act. I’m also hoping that he is on solid ground.
Vent continued...
I meant to end with Amnesty. It really doesn’t matter what it is. Whatever King Obama wants, along with his loyal pseudo-intellectual court jesters, let it be so!
Comply ( or submit, if you prefer, for you infidels! )
Powerless. :(
What does the 5th Circuit look like?
Is it one of the courts Obama was actively packing under Reid’s nuclear option, like the DC Circuit?
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