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

ImmigrationRally2 / 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.

NEXT: Imagining 'Prostitution 3.0'

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  1. The nice thing about Democrats is that most of them are too incompetent to achieve anything (except getting the votes of other dummies).

    If Barbara Boxer wasn’t an incompetent idiot, Congress would have been voting on a CO2 tax when the Democrats were in control.

    1. The House passed a CO2 bill in 2009-10.

      1. And the Senate Environment Committee was led by somebody too incompetent (Boxer) to craft a Senate version and reconcile.

      2. Are you suggesting Boxer is a representative? Boxer has some words for you:

        1. That kills me. It shows that she has no clue about military protocol and doesn’t realize that you are supposed to refer to any superior as either Sir or Maam.

  2. I have argued in the past

    none too successfully.

    You also left this out from Somin:

    I don’t claim that the above considerations definitively prove that the administration’s policy complies with the APA. I am not an APA expert, and there may be some issues I have overlooked. I do think, however, that these points undercut Judge Hanen’s main arguments.

    1. or see CATO for a shorter version:…..ood-policy

  3. 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.

    Of course no one did that. Dalmia should stick to other subject matter.

    1. Of course no one did that.

      Are you arguing that the PPACA waivers didn’t happen? Or that they weren’t unilateral?

  4. I’ve never understood the “libertarian” position on immigration. What kind of ideology tells you that you have a moral obligation to let your country be flooded with people who oppose that ideology? It’s crazy.

    1. I have never understood people who don’t understand libertarianism.

      1. It’s funny watching them make statements that show a complete and total lack of understanding, without the slightest bit of awareness.

        1. C’mon Episarch as an anarchist you can’t possibly understand all the nuances of his argument.

          1. You’re right, I’m looking for the nuances but I just can’t see them. It must be me.

        1. Oh, so you’re that kind of moron.

          1. Come on Epi, no true libertarian would call someone a moron.

            1. That’s 100% true in my case, Hugh.

        2. god that website has an awful design.

    2. I can only speak for myself. But, I believe in a free exchange of ideas (ideology). You can’t have a free market of ideas if you restrict the ideas you allow to enter the market.

    3. Because an important part of libertarianism is a free exchange of ideas? It’s not just an economic model.

      1. Letting people express ideas is one thing, letting them invade and take over your country is another.

        1. letting them invade

          Thanks for clearing that up.

        2. your country

        3. Is it time again to bring up my imperialist wet dream of a United States that stretches from Baffin Bay to Cape Horn?

          That will eliminate most of these pesky immigration problems.

    4. I think it’s more that restrictive laws prevent anyone who doesn’t want to deal with restrictive laws from coming in… so restrictive laws limit immigrants solely to the pool of people who work well with bureaucracy.

      Looser laws will allow more immigrants to see us as worth attempting immigration to.

    5. Because nothing screams libertarian like forcibly rounding up people living and working here, sending them to camps and then forcibly show them the ‘door!’

      And, of course, forcibly punishing those with the temerity to contract with them when they are here.

      1. Libertarians like to use a lot of words. Like “forcibly.” Isn’t rounding up people by definition “forcible?” But my point is this, if a libertarian state were established tomorrow, it wouldn’t last a day because Mexicans, Blacks, and Muslims would flood the country and re-institute big government.

        In a world where every single person isn’t a libertarian, you need to use “force” to defend your rights and your country.

        1. Man, ‘Merkin got another handle really fast. You’re full of beans today, aren’t you, moron.

        2. I give it a C- at best.

          Not a single original thought and no flair of any kind.

        3. The United States was founded by libertarians and ran with open borders for a century and a half before the Progressive Era pushed the founding libertarian ideals over a cliff.

          The Progressive Era was almost certainly caused by those damn 19th century immigrants, so score one for your theory.

          1. That’s lies, Mike.


            America’s founders wanted it to be a White country.

            1. That’s why they were dismayed when all those Africans showed up here…

            2. You must have linked to the wrong Wikipedia article. That one’s about naturalization, not immigration.

          2. it ran with open borders. It also ran WITHOUT a welfare state. The two do not mix.

        4. I personally wouldn’t mind a lot of immigrants, if we didn’t have goverment welfare. And without that, the number of people who’d come here, would be significantly less.

          And do please keep in mind the reason that so many of the rich liberals and 1% business owners like illegal immigrants: they are easy to take advantage of because they won’t complain and risk being turned in.

    6. I’ve never understood the “libertarian” position on migration. What kind of ideology tells you that you have a moral obligation to let your state, county, or city be flooded with people who oppose that ideology? It’s crazy.

      1. What kind of ideology tells you that you have a moral obligation to let your state, county, or city be flooded with people who oppose that ideology?

        No. You’ve got it exactly wrong:

        It’s an ideology that says just because we don’t like the way some people think, we don’t have the moral right to prevent them from engaging in economic transactions with our neighbors.

        1. He’s being sarcastic, tarran (maybe you are too). He’s taking ‘Murkin’s “country” argument and then just extending it to states or even cities to show how dumb it is.

          1. I got confused /hangs head in shame

            I was so transfixed of a young Rob Halford crooning:

            Midnight shady
            Good time lady
            Heavy, ready show you what for

            Barroom fighter
            Ten pint a nighter
            Definite ninety-nine

            Diamond cluster
            Knuckle duster
            Feline on the borderline

            that I started my reply/copy/paste on the wrong comment.

            1. tarran was very into Rob’s leather outfits and dog collars, but never understood why. Until he went to the leather bar.

              Did you ever listen to Halford’s solo project 2wo? I really liked the song “I Am a Pig” (Trent Reznor helped out on it). It reminded me your mom.

        2. we keep doing this over and over. You can’t have open borders and a welfare state. The open borders that existed long ago did so in absence of a welfare state. Be nice to get rid of the welfare state but who sees that happening?

          1. Speaking for myself, I am tired of giving up freedoms in a futile bid to prop up the welfare state.

            Keep the open borders, let the state collapse.

            1. you make collapse sounds like it’s inevitable and immediately so. While the former is likely true, the latter is not. And what freedom are you giving up? It’s not like you can’t hire someone under the table.

              Yes, I get under the table, by definition, means you cannot freely do it. But a broke-ass country does not benefit from importing millions of low skilled, poorly educated people who will require some measure of public assistance.

            2. Why would the welfare state collapse?

              1. because it is going to bankrupt the country. Does this really have to be explained?

      2. I’ve never understood the “libertarian” position on migration. What kind of ideology tells you that you have a moral obligation to let fuckers from New York flood into Pennsylvania. It’s crazy.

        1. We needs to put up fences to keep all those hyper-liberal city folk from flooding out into the country and spreading communism where ever they go.

        2. Maybe state borders are differnt from national borders in the same way that libertarians claim property borders are somehow different from national borders. Somehow property borders unlike national borders come with the ability to restrict access. It’s just as legitimate to say that contrarily state borders are open access and national borders restricted. As a people we elected to facilitate interstate connectivity while still retaining the right to exercise discretion on who we admitted to our nation.

        3. It isn’t a “libertarian position”. No country can exist without enforced borders, so don’t believe the BS you read from “Reason” (a one-word oxymoron). Open borders are not part of Libertarianism, just the publisher of “Reason”, and on that policy he is an idiot.

          1. No country can exist without enforced borders…

            Who’s saying don’t enforce the borders?

            Open borders just means that the state should not prohibit individuals’ crossing the border unless they present a provable specific threat to the population — e.g., as terrorists, foreign agents, violent felons, or carriers of disease.

      3. I’ve never understood people who think government welfare is a moral endeavor, rather than the immoral endeavor it really is. It’s simply immoral, because it requires taking peoples’ stuff to pay for it, and it’s not to provide for our security or to protect our liberties.

        Without government welfare, leeches won’t come here to suck on it. And instead, people who want to work, produce, consume and prosper will come instead.

    7. It’s a tribe thing. Most of these people have no problem with Israel’s immigration policies.

    8. As a Libertarian, this is my position on immigration: Open border’s with no “immigration policy” in so long as we DO NOT have a welfare state. As we DO have a welfare state, close the borders and be very scrupulous of who we allow in. Let’s get rid of SNAP, Medicaid, etc. and I will welcome my brethren from the South with open arms.

    9. I’m all for immigration, just the legal kind, making sure it’s documented and regulated.

  5. 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.

    I’d make a “Papeles, por favor?” joke, but the sorts of human beings who would do this for a living wouldn’t say please.

    I’ve about reached the saturation point of swat teams burning babies in their cribs, immigration cops arresting random people sans suspicion, or police murdering the occasional loudmouth only to be let off the hook by a gj. At some point this has to be bad for one’s health, physical or otherwise.

  6. If Obama decides to not seek deportation of certain people, that is really a political question between him and the Congress. What Obama cannot do is contrary to the INA grant people any kind of legal status. The INA is clear that only immigration judges and USCIS hand out legal status and they only do so under certain terms and in given numbers set by Congress. There is no “but Obama said I was legal” provision of the INA. So his actions, at least once he starts giving out cards and such, is completely contrary to law.

    As far as the APA issue, Dalmia is too hard on Obama. This isn’t a case of incompetence. This is a case of the administration taking the only available option. If they had followed the APA, it would have taken at least until 2016. No way would they have been able to comply with the APA and gotten this done before Obama leaves office. So they just ignored the APA and hoped for the best.

    1. “What Obama cannot do is contrary to the INA grant people any kind of legal status.”

      How can that be? We’ve had deferments on entire classes before (Bush I did it for Chinese immigrants immediately after Tiannemen).

      1. Heres a list of deferred actions, notice there’s precedent for issuing work authorizations.


        1. No. there are examples of people being paroled while legislation granting them status was pending. They got status after the legislation. Being paroled doens’t give you the ability to work.

          The President can let people in under a deferral and then go to Congress and ask for legislation to give those people status. But that is different than deferring them and giving them status unilaterally.

      2. Those deferments were based on specific provisons in the INA that gave the President the authority to do it. What Obama is doing is not based on any such provision.

        Further, Bush didn’t grant them green cards or the right to work. A deferment doesn’t do that. It just means the government isn’t going to deport you. You still have to go though the normal process to become an LPR. You are not getting a job legally, you just get to stay.

        1. John, here’s the EO from Bush I

          Notice this language:

          Sec. 3. The Secretary of State and the Attorney General are directed to provide the following protections:

          (c) authorization for employment of such PRC nationals through January 1, 1994; and

          1. Bush was granting them parole. That is under 212D of the INA. it is supposed to be done on a case by case basis or in response to a specific event, in that case Tienanmen Square.

            I think it is questionable whether Bush had the authority to use parole there. It ended up being moot because he went to Congress and got them to take action on Chinese refugees that were covered under the EO.

            Regardless, there is nothing in 212 D that extends the President the authority to extend parole to entire classes of immigrants, regardless of circumstance the way he is doing here.

            You will never admit it, because you like the action, but it is not legal.

            And lastly, parole is for a set period of time. I am unaware of any time limit on the Obama action. Moreover, the point of parole is to let someone in the country until their status is solved. It is not a way to let someone in forever.

  7. For the record, I have successfully put toothpaste back in the tube.

    1. you’re a genius

    2. Yes, but have you ever put a cat back in the bag? I mean a live cat, not declawed.

  8. “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.”

    I’m all for open immigration. But, I fail to see how the executive action on immigration is constitutional. The prosecutorial discretion part I get. Yes, that’s perfectly legal. But, how is issuing work permits to people who don’t qualify for them under the current law any different than the unilateral rewriting of the ACA?

    1. But, how is issuing work permits to people who don’t qualify for them under the current law any different than the unilateral rewriting of the ACA?

      Libertarians get what they want?

    2. As I understand it, these aren’t actual legal papers being handed out. It’s a sort of “Get Out Of Deportation Free” card that codifies prosecutorial discretion 2×3 piece of orange lightweight cardstock.

      1. They are more than that. They are “I can work here and Obama promises not to prosecute you for hiring me”.

        The only way you can argue they are legal is to say what you are saying, which is they don’t really have any legally binding effect, which seems a bit odd.

        1. They already have that, and if they don’t in their state, they should just come to MD.

      2. Well, I can tell you this much. Some of the illegal community think that they are on the path to citizenship with all the perks.

        Now that’s probably Obama’s fault for running his mouth the way he does all the time and grandstanding.

        But most of them seem to be very leery of this and won’t go to sign up for anything because they’re afraid and don’t trust the government. These are the smart ones. What are they gaining anyway? They already(in some states, like mine) are not in any danger of being deported, they already work, drive, and do pretty much anything a legal citizen does, except vote. What’s really in it for them that’s worth the risk of entering a government office and documenting themself?

      3. Doesn’t codification mean there is no longer any discretion? If you codify the discretion it’s now de facto law. Which is why I personally think it’s not legal.

        1. The codification can be overturned by the next administration or this one, that’s why it’s still discretion.

          1. I see your point but, really, what’s to stop the next Prez from suspending prosecution of people who don’t pay their taxes? I’m not trying to be sarcastic, I’m really curious. If this is really how prosecutorial desecration works, then we aren’t really bound by the rule of law. And, that doesn’t sounds like a Constitutional Republic to me, it sounds like a dictatorship with term limits.

  9. Obama’s incompetence might doom his ________.

    Most answers are considered correct.

  10. The amount of presidential power being exercised here is kind of astonishing. If I understand it, since the feds have to decide which crimes they are going to prioritize,

    1) They will create a bureaucracy that will allow people to apply not to be prosecuted for illegal immigration,

    2) They will prevent the states from enforcing the laws,

    3) They will guarantee that employers won’t be prosecuted for employing the people they are themselves too busy to prosecute, and

    4) They will, presumably, make it a crime to discriminate against workers who are here because the feds are too busy to prosecute them.

    But apparently, none of that is “rulemaking”, and therefore the public doesn’t get a chance to comment under the APA.

    I know, earlier presidents did similar things, but this is like a real life reducio ad absurdum.

  11. “Obama’s Incompetence Might Doom his….”


  12. Your article claiming Obama’s action were legal and constitutional were written in August, before they were announced.

    Yes, the judge agrees that deferred and selective prosecution (deportations) are within prosecutorial discretion.

    However, in pages 90 to 100, the judge clearly explains how giving work permits or driver’s license to people who are prohibited by existing law from receiving them IS NOT discretion, it is a rewriting of the law, and thus a violation of the separation of powers.

  13. MikeP|2.23.15 @ 3:00PM|#

    I’ve never understood the “libertarian” position on migration. What kind of ideology tells you that you have a moral obligation to let your state, county, or city be flooded with people who oppose that ideology? It’s crazy.

    Unless you want crossing from Mexico into the US to be as simple as crossing internal state boundaries.. no criminal background check, no explosives check, no infectious disease check, no need to stop at the border at all… then you’re just deploying sophistry with this argument.

    1. Actually, I want crossing from Mexico into the US to require visas issued only to those who pass a background check to prevent entry of criminals, terrorists, foreign agents, or infectious diseases.

      If that’s what you want too, then we completely agree. If, however, you think that those visas should be limited in any way beyond that background check — such as by quota or duration — then we disagree, and my argument is not in any way sophistry.

  14. “Obama’s Incompetence Might Doom his Immigration Executive Action”

    Good. A nation cannot survive without borders that are enforced.

    1. Border enforcement is not the issue.

      The fact that it is illegal for harmless people to immigrate is.

      1. There is no such thing as a “harmless person” – just as The Sierra Club, or the Natural Resources Defense Council.

  15. I guess that you didn’t believe Obama when he said – 20+ times – that he didn’t have the authority he later asserted he did?
    Is he lying now, or was he lying then?
    Or Both?

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