Obama's Incompetence Might Doom his Immigration Executive Action

Asking the 5th Circuit Court to overturn last week's block might be too little too late


As per the Wall Street Journal, the administration just filed a plea before the Fifth Circuit Court to overturn the block

JcOlivera.com / Foter / CC BY-NC-ND

that a Texas federal judge placed last week on the president's executive action on immigration. The action, which restrictionists have misleadingly dubbed executive amnesty, would defer deportation proceedings and issue temporary work permits to up to 4.6 million undocumented aliens. Reports the Journal:

Last week, U.S. District Judge Andrew Hanen blocked the administration from implementing the program in response to a lawsuit from 26 states, which allege President Barack Obama has overstepped his executive authority in creating the program announced in November.

The Obama administration on Monday filed a separate appeal of the decision to the Fifth U.S. Circuit Court of Appeals in New Orleans. The fight could quickly move to the U.S. Supreme Court.

Texas Gov. Greg Abbott last week issued a statement saying Judge Hanen should deny a request to stay his injunction. "A stay is typically granted to have the status quo maintained," he said. "Here the status quo is the immigration law passed by Congress, not the executive action by the president that rewrites immigration law."

The Obama administration in the request also asked that the injunction be limited to Texas, should the court decide to leave it in place.

The Justice Department said 12 other states and the District of Columbia filed briefs saying they would benefit from the administration's immigration plan—and that they therefore would be harmed if it were delayed while Texas presses its case at trial before Judge Hanen.

I have argued in the past that Obama's executive action, unlike his unilateral rewriting of the Affordable Health Care Act, is both legal and constitutional. And indeed Judge Hanen's ruling did not dispute that. Instead, he ruled that the administration had not fulfilled the procedural requirements of the Administrative Procedures Act because it did not offer a sufficient period for public comment. Ilya Somin offers a pretty thoughtful debunking of that notion here.

That said, I think the Fifth Circuit will rule against the administration because it is a largely conservative bench and hence, like Hanen, will worry that if the administration is allowed to proceed, it'll be very hard to "put the toothpaste back in the tube." And since the Fifth Circuit judges know that regardless of their decision, the case is going to be appealed to the Supreme Court, they would prefer to let the status quo stand, as per their conservative orientation.

This is terrible news for the administration, even if the Supreme Court finally rules in its favor. Why? Because it might  take up to a year for the matter to be resolved in the SC, and that might pretty much derail the whole plan.

That's because the president can defer deportation only for three years — after which his successor will be free to overturn it if he/she so wishes. But of course overturning "executive amnesty" will be a lot harder if it involves actively taking away people's work permits — and a lot easier if it involves simply stopping them from getting them in the first place. Hence if the block prevents the administration from implementing its plans till the middle of 2016 and the president will be out of the office by the beginning of 2017, that won't leave very much time to process 4.6 million applicants.

Given that time is of the essence, it was perfectly predictable that the president's opponents would try and run out the clock . Yet, it seems, the administration was caught unawares without a legal strategy to deal with what was coming much less a Plan B.

But this is not the first time that the administration would be screwing over Latinos. As I wrote in my column at The Week last Friday, the president has been deporting undocumented people left and right since assuming office to advance his political prospects. But that's not the worst of it. In order to boost his sagging deportation numbers before the 2012 elections, he invented a nasty little program called Criminal Alien Removal Initiative (CARI) that ups the ante in the War on Immigration and is every bit as vile as anything spawned by the War on Drugs. At its essence, CARI is a "stop, fingerprint and deport" program that has laid havoc in Latino communities in New Orleans and elsewhere. I noted:

Here's how it worked: Local police and ICE agents in unmarked vans and plainclothes would park themselves outside grocery stores, apartment buildings, parks, neighborhoods and — on one occasion at least — even a Bible Study group in Latino-heavy areas, and confront whoever they wished, demanding to know their immigration status. They'd handcuff and detain them in the vans — without a warrant or formal charges or allowing them a phone call, much less legal representation — and forcibly fingerprint them with a high-tech mobile unit.

They'd then run the fingerprints through federal databases, a process that would sometimes take hours, during which detainees couldn't leave to pick up their children or get to their jobs. All those flagged as undocumented, even if they had lived basically crime free, would be dispatched immediately to detention facilities to await deportation. Once, authorities beat up a man till his knees bled through his pants — and then yelled at him when he tried to wrap his legs in toilet paper, according to a New Orleans Workers' Center for Racial Justice (NOWCRJ) report.

Such ICE raids — that agents jokingly referred to as "hunting" expeditions — terrorized the New Orleans Latino community, whose sweat and tears rebuilt the city after Hurricane Katrina. Families lived in mortal fear of being torn apart at any moment. Fathers and mothers, many with American children, became afraid to go out to work or get groceries.

Go here to read the whole thing.

When this administration is not ruining immigrants with its harshness, it is ruining them with its kindness.

Update: The only way Obama's executive action could still work is either if the SC removes the possible Fifth Circuit block pending its ruling or issues an emergency ruling. The first is more likely than the second although I wouldn't bet on either.

Update 2: Immigration attorney Prerna Lal noted in an e-mail to me that the administration has another option for salvaging its executive action, although it has offered no sign that it has even considered the possibility. It could, in principle, invoke the notice and comment period now, and render Hanen's decision, as well as his injunction, moot, within 30-60 days. "Whether it has the will to actually do so is another question," she says.

Update 3: In a facebook conversation, Ilya Somin notes that Lal's strategy might not be workable. He says that the logic of Hanen's ruling suggests he would only lift his injunction if the administration actually completed the notice and comment process (which could take months) and issued a rule as a result. And even then, he would likely just rule that the whole thing is unconstitutional, violates the INA, or both. Obama's best hope is to prevail at either the Fifth Circuit or the Supreme Court (or, if need be, both).

So could the administration have avoided this situation by offering a notice and comment period before promulgating the new policy?

Somin doesn't think so. If it did that, it would then have undercut its own argument that it was just relying on executive enforcement discretion, and would have been more vulnerable on the constitutional front. Plus, the policy would then have taken many more months to adopt. "Overall, I agree with you that they should have pushed the immigration issue more forcefully much earlier," he says. "But having gotten to this point, as they had by November 2014, it is not clear that they had a better option than relying on executive discretion."

But why did they wait till November 2014 to move forward? So as to not jeopardize Democratic prospects in the mid-term elections. But jeopardizing the lives of 4.6 million undocumented aliens was A-OK!

More proof that modern-day MLK this president aint.