There’s still a lot of litigating ahead for the immigration lawsuit brought by 26 states against the Obama administration. But whatever the end result, Judge Andrew Hanen ought to be given the Will Rogers Award for his straightforward, forthright, plain-speaking analysis of what the president has really done with his immigration plan.
Hanen is the federal district court judge in Texas who issued an injunction against implementing the amnesty plan on President’s Day. His ruling cuts through the misrepresentations and legal flummery advanced by the administration to justify its “Deferred Action for Parents of Americans and Lawful Permanent Residents,” or DAPA program. His Feb. 16 opinion is chockfull of noteworthy comments:
- Hanen notes that “illegal alien” is “the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law.” So the next time someone tells you that’s an offensive term, tell them that is the accurate legal term according to the U.S. Supreme Court.
- On the president’s right to “defer action” on removing millions of illegal aliens, Hanen notes: “deferred action is not a status created or authorized by law or by Congress, nor has its properties been described in any relevant legislative act.”
- “[T]here can be no doubt that the failure of the federal government to secure the borders is costing the states — even those not immediately on the border — millions of dollars in damages each year … [and] the federal government has effectively denied the states any means to protect themselves from these effects.”
- On the president’s policies encouraging increased illegal immigration: “[T]he Government’s failure to secure the border has exacerbated illegal immigration into this country” and “Unquestionably, some immigrants are encouraged to come to the United States illegally based upon the information they receive about DACA and DAPA. Reports of lax border security, minimal detention periods following apprehension, and the ease of missing immigration hearings may also encourage many to immigrate to this country illegally.”
- “[T]he States assert that the Government has abandoned its duty to enforce the law. This assertion cannot be disputed … It is not necessary to search for or imply the abandonment of a duty; rather, the Government has announced its abdication … 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.”
- On the government’s claim that it does not have the resources to enforce immigration laws: “if one accepts the Government’s position, then a lack of resources would be an acceptable reason to cease enforcing environmental laws, or the Voting Rights Act, or even the various laws that protect civil rights and equal opportunity.”
- “Congress has clearly stated that illegal aliens should be removed … the DHS program clearly circumvents immigration laws and allows individuals that would otherwise be subject to removal to remain in the United States … DHS does not seek compliance with federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country’s immigration law.”
- “The Government must concede that there is no specific law or statute that authorizes DAPA. In fact, the President announced it was the failure of Congress to pass such a law that prompted him (through his delegate, Secretary Johnson) to ‘change the law.’”
- DHS cannot “enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them … The DHS Secretary is not just rewriting the laws; he is creating them from scratch.”
- On the government’s claim that the federal court has no right to review the legality of the DAPA program: “As there is no statute that authorized the DHS to implement the DAPA program, there is certainly no statute that precludes judicial review.”
- In dismissing the administration’s oft-heard claim that its immigration policy is within its power of prosecutorial discretion: “Instead of merely refusing to enforce the [Immigration and Nationality Act]’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. Absent DAPA, these individuals would not receive these benefits. The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens … Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that — not enforcing the law.”
- The Administration’s non-enforcement policy is near absolute. As Hanen points out, the administration has said that, even in the unlikely event that an illegal alien is rejected for the DAPA program, they “will not be referred to ICE for purposes of removal.” In other words, even “if you do not qualify, you still get to stay.”
- Contrary to the administration’s false claim that immigration agents will retain the discretion to deny benefits to illegal aliens under the DAPA program, “with the criteria set, from the President down to the individual USCIS employees actually processing the applications, discretion is virtually extinguished.”
- The states “allege that legalizing the presence of millions of people is a ‘virtually irreversible’ action once taken. The Court agrees.” Hanen added, “This genie would be impossible to put back into the bottle” — something the administration appears to view as a benefit rather than a drawback.
- And finally, according to Judge Hanen, the public interest “that weighs the heaviest [in this controversy] is ensuring that actions of the Executive Branch (and within it, the DHS — one of the nation’s most important law enforcement agencies) comply with this country’s laws and its Constitution.” President Obama’s actions show little concern for that interest.
What Will Rogers once said about Congress can now be applied to the administration’s behavior: with this White House, every time it makes a joke, it’s a law, and every time it makes a law, it’s a joke.