The latest histrionics of those opposed to rational immigration reform measures has its basis in the Feb. 16 opinion of Federal District Judge Andrew S. Hanen in the case of Texas v. United States.
The most striking thing about the opinion is not what it holds but how it’s being mischaracterized by its supporters.
Sen. John McCain (R, Ariz.) said on Face the Nation last Sunday the decision says the “…president’s action unilaterally are (sic) unconstitutional” and he’s angry the president of the United States “would unconstitutionally issue the executive orders that he did.” The decision says no such thing and specifically noted the president did not issue an executive order on the subject of the case.
On the same program Greg Abbott, the governor of Texas, said in speaking of the decision “…the president has contradicted the Constitution by actually making up the law and imposing his own standards on the immigration system.” The court did not so hold.
Louisiana’s Gov. Bobby Jindal praised the ruling, saying the president granting “amnesty to millions of illegal aliens is unconstitutional and we’re glad the court agreed.” The court did not even discuss amnesty.
So, what really is at issue, and what did Judge Hanen do?
Texas and 25 other states (including Nevada) filed suit against the United States seeking an injunction to prevent the government from implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. This program, promulgated by the Department of Homeland Security (DHS), would defer deportation of certain “illegal aliens” who are parents of immigrants lawfully in the United States. Persons eligible for such deferment cannot be of a class targeted for deportation, must have been in the country since Jan. 1, 2010, and be here at the time DAPA was issued and at the time of an application for deferment. Deportation would be deferred for periods of three years, during which time those granted such deferments could lawfully work in the United States.
The government justifies DAPA on the grounds it does not have the resources to deport 11 million immigrants and deferment is a long-used exercise of prosecutorial discretion, recognized by the Supreme Court. It rightfully claims DAPA is a humanitarian action to avoid breaking up families and a sensible law enforcement action and an economic lift, both in the national interest.
Make no mistake, however, Judge Hanen absolutely believes DAPA is unconstitutional, stating “It is, in effect, a new law.” But the court did not declare DAPA unconstitutional. Its only substantive action was to issue a preliminary injunction delaying DAPA implementation to prevent plaintiffs’ suffering irreparable harm prior to a determination of the program’s constitutionality.
DHS has asked Judge Hanen to remove the injunction and said it’s going to appeal to the Fifth Circuit Court of Appeals if he does not. At issue are two core constitutional issues: Is DAPA a “law” and thus an encroachment by the executive branch on Congress’s exclusive legislative powers? And by not deporting undocumented immigrants would the president fail the constitutional mandate “to take care that the laws be faithfully executed?”
Ultimately, the Supreme Court will decide those issues, not misinformed or deliberately misleading members of Congress or state governors.
Bo Statham is a retired lawyer, congressional aid and businessman. He lives in Gardnerville and can be reached at firstname.lastname@example.org.