Tuesday, February 17, 2015

Oh wow, so now federal district judges get to have their own immigration policy!


Mike Luckovich
And detractors say Republicans have no immigration plan!

"Some legal scholars predicted the United States Court of Appeals for the Fifth Circuit would quickly suspend Judge Hanen's ruling. Laurence H. Tribe, a Harvard law professor, told [the NYT's Julia] Preston that 'federal supremacy with respect to immigration matters makes the states a kind of interloper in disputes between the president and Congress.'

" 'They don’t have any right of their own,' he said."

-- from this morning's nytimes.com "First Draft"

"Judge Hanen’s decision will undoubtedly grant political legitimacy to the legal arguments against the Obama administration’s policy. The real question, however, is whether other judges who have not displayed the same hardline attitude towards immigrants — in one opinion, Hanen labeled the government’s decision to allow an undocumented mother to be united with her child without facing criminal charges as a “dangerous course of action” — will follow Hanen’s lead."
-- Ian Millhiser, in his 3:43am ThinkProgress post

by Ken

Which goes to show, Professor Tribe, just how much you know about it! Now, apparently, not only do the states have immigration policies, but so do federal District Court judges.

The Washington Post's Fred Barbash reports (links onsite):
A federal judge in Texas last night temporarily blocked the Obama administration’s executive actions on immigration. The judge, responding to a suit filed by 26 Republican-run states, did not rule on the legality of immigration orders but said there was sufficient merit to the challenge to warrant a suspension while the case goes forward.

No law gave the administration the power “to give 4.3 million removable aliens what the Department of Homeland Security itself labels as ‘legal presence,’” the judge said in a memorandum opinion. “In fact the law mandates that these illegally-present individuals be removed.” The Department of Homeland Security “has adopted a new rule that substantially changes both the status and employability of millions.”
This is mostly right-wing bullshit, of course, as the White House suggested in a statement released this morning, which pointed out that both Congress and the Supreme Court have recognized the president's broad authority to set priorities in the enforcement of immigration laws. The Obama administration had argued that for this reason, and since the states would suffer no harm from the orders and therefore had no standing to sue, the lawsuit should be tossed out. The White House statement indicated that the Justice Department will appeal Judge Hanen's ruling.

To return to Fred Barbash's WaPo report:
Hanen based his temporary injunction on his belief that the administration, in making such a sweeping change to what current law “mandates,” at the very least failed to comply with the Administrative Procedure Act’s provisions on “notice and comment.” He said the case should go forward rather than be thrown out, as the administration has urged.

He said it was necessary in the meantime to stop implementation in part because failing to do so could prove costly to the states. They would have to deal with suddenly legalized immigrants who, “armed with Social Security cards and employment authorization documents,” would start seeking various government benefits and services. “Once these services are provided, there will be no effective way of putting the toothpaste back in the tube” should the states ultimately prevail on the merits, he said.
Strangely, perhaps even inexplicably, despite the judge's keen observation that "the law mandates that these illegally-present individuals be removed," he did not order this done -- by, say, close of business today. You'll note that our busy-bee judge issued his order the night of a holiday! A right-wing judicial activist's work is never done!

In the above-referenced nytimes.com "First Draft" item, Steve Kenny notes that the judge in question, Andrew S. Hanen of the U.S. District Court for the Southern District of Texas, who ruled in favor of the 25 states that have sued to block President Obama's executive order on immigration, is "an outspoken critic of the administration on immigration policy." You like to think that maybe the judge himself wouldn't put it exactly that way -- that judges don't actually get involved in policy disputes with presidents, and especially don't proceed to make judicial rulings based on their policy viewpoints.

But heck, it's Texas, and double heck, it's right-wing, and whereas so-called liberal judicial activism was, in the loudly proclaimed view of the Right, one of the vilest atrocities in the history of American jurisprudence, unquestionably actual right-wing judicial activism is de rigueur, as the French say. (I'm assuming that the French are still enjoying their recent unexpected vogue chez nous.)

Still, given how out of touch a bleeding-heart liberal like Professor Tribe is with the realities of how our immigration policy is made now, one is inclined to wonder about his confidence that the Fifth Circuit will overrule Judge Hanen.


Naturally, we want to know the take of ThinkProgress's invaluable legal eagle Ian Millhiser. I've included a snatch of his 3:43am post, "Federal Judge Blocks Obama’s Immigration Action At The 11th Hour. Here’s Why It Probably Won’t Work," at the top of this post. Ian has many caustic things to say about Judge Hanen and his opinion, and also some interesting reasons why he thinks the judge isn't likely to prevail.

Jimmy Margulies
If GOP demagogues had devoted half as much energy to fixing the duct tape themselves . . . well, no, they can't agree on how to do that, no matter how much energy they expend.

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