Some big news out of Texas overnight. A federal judge (Andrew Hanen) has issued an injunction temporarily blocking Barack Obama’s November executive action on immigration. The action was requested by the attorneys general of 26 states and sought to prevent excessive costs to the states for benefits which would have to be paid to the illegals and for increased expenditure of law enforcement resources.
Patrick Brenan has a lengthy analysis at National Review which covers all the key points.
The federal government is expected to immediately ask for a stay of the injunction. That would allow the feds to resume the process of preparing to grant quasi-legal status to millions of illegal immigrants — applications for one category of the president amnesty were to open this week. For now, that can’t happen; the decision from a higher court will probably take a few weeks…
The basic argument from the states that Hanen favors isn’t one about constitutional improprieties (he doesn’t get to that question, which the states have raised); it’s that the Department of Homeland Security has effectively created a whole new program and procedure without following any of the legally necessary steps. The Obama administration’s use of deferred action amounts to new rulemaking, Hanen suggests, because there’s so little evidence that the system, based on DACA, involves case-by-case discretion, as the feds claim it does.
For more legal beagle insight on this ruling, read this report from Josh Blackman. He’s a law professor who has been following the case and filed a brief in support of the states.
As Brenan notes, there are a few reasons to not get overly excited or read too much into this ruling. While Judge Hanen has issued an injunction, the Feds will be appealing this morning and the Fifth Circuit could issue a stay (essentially putting the hold on hold) in very short order. This might take a couple of weeks at most, or possibly even sooner.
Also, as with so many of the cases we’ve seen where congressional leaders have challenged the executive branch, the issue of standing will be a huge question. Josh Blackman’s analysis reveals that the ruling is well over one hundred pages long and more than a third of it deals with the question of whether or not the plaintiffs have standing to bring the case.. He concludes that they do, but the fact that he spends so much time justifying it rather than moving on to the merits of the case may be an indicator that he expects that aspect of it to be challenged.
This case doesn’t address the more than one million illegal immigrants covered under the 2012 DACA orders. Current estimates indicate that the new order will add another four to five million illegal immigrants beyond the original order. With all of them suddenly lining up for drivers licenses, work permits and other benefits, the costs will be substantial and are not funded by the federal government. It’s a rather clinical, technical objection to a subject which most conservatives would rather see challenged on constitutional grounds, but you take what you can get. We should know by the end of the month whether this is just a bump in the road for Obama or a serious challenge to executive amnesty.