Republicans cheered the decision of Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas, in Brownsville, in the lawsuit brought by Texas and 25 other states, challenging Obama’s immigration plan. The judge’s ruling ran three pages, and in it the judge said no part of the president’s plan could move forward until “a final resolution of the merits of this case.”
Depending on which side of the aisle people are on, there are several arguments, both for and agains the judge’s decision. And because of those differing arguments, the administration’s lawyers are in a quandary over the best course of action that should be taken. The New York Times on Tuesday reported that administration officials were saying the sweeping executive actions on immigration were “postponed indefinitely.”
But in the two days following the announcement, a more level-headed approach is apparent, with administration lawyers debating several options to challenging the injunction. At risk in all of this is funding for the Department of Homeland Security. Republicans have argued that funding for the agency should not be approved without measures in place to block Obama’s actions.
Also at stake are the two major parts of Obama’s immigration plan. According to the Department of Homeland Security, the first part is a major expansion of the Deferred Action for Childhood Arrivals program or DACA. The agency was expecting to begin accepting applications for DACA as early as this week, but the process was stopped by Judge Hanen’s injunction. The other part of the plan was the formation of the Deferred Action for Parents of Americans program or DAPA. Between the two programs, over 4.4 million people would be given deferred action, a type of temporary permission to be in this country.
Legal options available to administration lawyers
One action available to White House lawyers is to ask for a stay of U.S. District Court Judge Hanen’s injunction. This is an aggressive action, to be sure because the request would go first to Judge Hanen and then to the 5th U.S. Circuit Court of Appeals. Being a Texas court in a Republican-dominated state, this court is one of the most conservative appeals courts in the country. And should the appeals court rule against the Obama administration, it could ask the Supreme Court to allow the administration’s plan to proceed while the legal wrangling continues.
An easier and less risky approach would be to take an appeal directly to the 5th District Court of Appeals, and ask that the case be heard forthwith. Even still, having the court act expeditiously could still take months. In this particular court, taking as long as nine months to hear a case is not uncommon. Of the two actions, if either the administration or the 26 states suing to block the immigration plan disagree on the ruling of the appeals court, taking the case to the Supreme Court would delay things even further.
The biggest argument for getting a stay of Hanen’s injunction is the fact that the Texas judge made several legal mistakes in writing his ruling. The law is very clear, stating a federal court has jurisdiction on a matter only if the court’s decision will solve the problem. In other words, if the court’s decision has no effect, it is an “advisory” decision and is unconstitutional. Judge Hanen’s ruling certainly didn’t address the problem of immigration, or offer redress to the 26 states.
Deferring all action on the immigration plan and holding off on any legal action until later in the year may not be a good idea. Doing so would put the administration in the position of trying to deal with close to 5 million immigrants before the president leaves office. Not only that, but doing so would make immigration reform a hot item in the election campaigns. Whatever the Obama administration decides to do, the timing will be critical.
