Over the past four months, the national debate on illegal immigration has completely shifted — a consequence of President Obama’s unilateral executive action. Obama’s directive, which essentially legalizes about five million illegal immigrants, has changed the parameters of the immigration debate, as the president intended. The president’s authority to apply prosecutorial discretion to a pre-defined class of people instead of on an individual basis is legally questionable. But there’s no questioning the impact of his maneuver on the political scene.
Republicans are furious, as this action sidesteps their new majorities in Congress and acts in the exact opposite way that their base desires. In his explanation of why he decided to act, President Obama points to an “obstructionist” Congress that refuses to take up the issue. This is a spurious claim — imagine if a hypothetical President Romney had decided that since Congress refused to cut the top marginal tax rate to five percent, he was going to stop prosecuting all those in the top bracket who paid less than their legal obligation. Obstruction cannot justify unilateralism in all cases.
Naturally, this has led to a multi-front war.
On one front, Republicans in Congress have attempted to cut off funding for the executive action by prohibiting the Department of Homeland Security to spend any money on the action in their appropriations budget. Unsurprisingly, this has met with fierce Democratic opposition and the bill died in the Senate, likely forcing Republicans to pass a “clean” appropriations bill for the Department. Indeed, a clean DHS bill was passed on Tuesday.
On the other front, Texas and 25 other states have sued the Department of Homeland Security in federal court in order to stop this action from being implemented. Enter Judge Andrew Hanen.
Appointed by George W. Bush, Judge Hanen presides over the United States District Court of South Texas, where the lawsuit against the president’s executive action was filed. What is obvious to many on the right, that the president’s action is a power grab by an executive trying to rewrite laws, appears to be the opinion of Judge Hanen as well.
In ruling on this case, Judge Hanen faced a challenge. If he wanted his decision to be upheld in a federal Court of Appeals or even the Supreme Court, his legal argument needed to be minimally based on ideological opinions of prosecutorial discretion, as this area is where many liberal-leaning judges in the appeals process could simply disagree and overturn his decision. To the relief of many conservatives and other critics of executive overreach, Judge Hanen was up to the challenge.
On February 16, Judge Hanen blocked the president’s immigration action and released his decision, focusing primarily on administrative legal issues while also restraining some of the powers of prosecutorial discretion. This method has many legal analysts unsure as to whether Hanen’s decision will be overturned during the appeals process.
Focusing on the relatively obscure Administrative Procedure Act, Judge Hanen ruled that the administration’s actions were unlawful as they did not put the action in the Federal Register or allow public comment on the action, which is required by the APA. This “notice and comment” requirement applies to any new rule or regulation that is binding on federal employees instead of just general guidance. Considering President Obama recently announced that there would be “consequences” for immigration officials who don’t follow his administrative policy, Judge Hanen is probably on safe ground in ruling that the directive would be “binding” for federal employees.
On the issue of prosecutorial discretion, Judge Hanen also ruled cleverly. In his decision, he ruled that the executive branch does in fact have the discretion to not deport some of the illegal immigrants they apprehend — but that does not mean that these illegal immigrants can be granted work permits or social security numbers, as the action allows. This is the same as saying that a district attorney has the discretion to not prosecute all speeders on the highway, but this ability does not give the district attorney the power to raise the speed limit. This decision seems like an obvious one, but it is significant nonetheless.
This battle is far from over as the administration has already begun the appeals process. The battles in Congress and in court will likely extend until at least the end of President Obama’s term. Once this issue is resolved once and for all in an inevitable Supreme Court case, only a few will remember the clever legal maneuvering of a federal judge in southern Texas.
—Connor Kitchings is Associate Editor of THE ARCH CONSERVATIVE.
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