On Monday night, a Texas court temporarily halted the implementation of Obama’s Executive Action announced last November. Specifically, the ruling delays the application of the extended Deferred Action for Child Arrivals (DACA) — previously slated to begin on Feb. 18 — and Deferred Action for Parental Accountability (DAPA) programs until the ruling is superseded by a higher court.
This ploy began in December, when a combination of governors and attorney generals from 26 Republican-run states sued the federal government to block the Department of Homeland Security directives from going in to effect. This lawsuit, Texas v. United States of America, challenges the legality of both the DACA and DAPA initiatives, which together would have granted nearly 5 million immigrants eligibility for temporary deferred action and work permits.
Here’s what you need to know about the Texas vs. United States ruling in the aftermath of Monday night’s decision:
This is a strategic partisan attack disguised as a lawsuit.
It is widely believed that the true ethos of the Texas vs. United States lawsuit has been constructed behind the scenes by anti-immigrant activists. Kris Kobach, notorious anti-immigrant lawyer and Kansas Secretary of State, is rumored to have authored the original lawsuit. The Washington Post reported that Kobach, who also authored the notorious Arizona S.B. 1070, began writing the first 40 or 50 pages of the lawsuit even before a plaintiff was secured. Kobach’s involvement is a clear flag that this lawsuit is another chess piece in the much larger and deeply divided immigration debate.
Another aspect of the lawsuit that raises red flags is the obvious bias of anti-immigrant Judge Andrew Hanen. Some have called Hanen the “ideal judge for immigration nativists.” It is not coincidental that this nationwide case was filed in Brownsville, Texas where Judge Hanen is one of only two judges in the jurisdiction. Hanen’s rulings have consistently criticized federal immigration policy. Last year Hanen openly expressed his “frustration over four cases in a month in which a child who arrived in the U.S. [unauthorized] was reunited with a parent also in the country [undocumented].”
When looking closely at the key players in this lawsuit, such as Kobach and Hanen, it is clear that this lawsuit is adding fuel to the much larger anti-immigrant political game.
This negative decision from Judge Hanen was procedural, not constitutional.
Judge Hanen’s decision to halt the implementation of DACA and DAPA was not made on the grounds that these programs are unconstitutional. According to the ACLU, his ruling does not represent a decision on the legality of executive action. Rather, Judge Hanen’s very narrow ruling claimed that the President did not go through the proper legal procedure before making his announcement.
The Administrative Procedures Act requires the government to first provide notice in the Federal Register and then allow for a period of comment before announcing actions. Hanen ruled that because the Obama administration did not file their action properly, it violated the law. The Department of Justice counters that “legal scholars, immigration experts, and even other courts have said that [their] actions are well within legal authority.”
Hanen’s court also made a small constitutional claim that one state of the 26 — Texas — would be harmed during the implementation of DACA/DAPA. According to Hanen’s ruling, Texas would be negatively impacted because the cost of printing and issuing driver’s licenses imposes an unfair cost to Texas that is imposed by the federal government.
As experts have shared, this decision is just the end of one chapter in a long book of immigration reform.
Overall, the two broad points of decision making in the Texas courts’ decision ignore the evidence provided by lawyers, law enforcement, majors, and legislators that show evidence of financial and societal benefits provided by executive action and the legality of the administration’s actions. It also completely disregards the desires of millions of immigrants whose lives are in limbo because of congressional inaction on comprehensive immigration reform, and who have been anxiously preparing paperwork in anticipation of the extended DACA.
Although Judge Hanen’s decision is a disappointment to the larger movement for comprehensive immigration reform, it is a bump in the road and not a stop sign for undocumented immigrants and immigration advocates. Supporters are working tirelessly to keep the process moving forward.
Reason for hope
The majority of Americans support executive action and want to support the decision to offer eligibility to around 4 million immigrants who would qualify under the extension of deferred action programs. Therefore, there is much reason to remain hopeful.
Looking at historical precedent, similar anti-immigrant lawsuits such as Arizona’s S.B. 1070 have failed in the past. In 2012, Supreme Court Justice Kennedy struck down much of Arizona’s anti-immigrant law arguing that the administration has “broad discretion” when it comes to choosing who to deport.
Now, the Department of Justice will apply for an emergency stay of Judge Hanen’s ruling to the 5th Circuit Court of Appeals. This process ranges in length. A decision could be rendered as early as a few days to several months. If the 5th Circuit grants the emergency stay, the implementation of the directives will continue while they consider the merits of the plaintiffs’ case. If the 5th Circuit denies the stay request and the temporary injunction remains in effect, implementation of the DACA expansion and DAPA programs will be delayed further.
As the legal proceedings continue, immigration advocates remain extremely positive that as the judicial decisions elevate in stature executive action is more likely to be supported.
Melissa Crow, Legal Director at the American Immigration Council, remains confident that “while the decision will unfortunately delay critical efforts to address our broken immigration system, the need and the demand for reform has never been greater. We remain confident that it is a question of when, not if, these programs will take effect."
Kaeley McEvoy is Campaigns Assistant for Sojourners.
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