A federal judge in Texas has ordered a halt, at least temporarily, to President Obama’s executive actions on immigration, siding with Texas and 25 other states that filed a lawsuit opposing the initiatives.

In an order filed on Monday, the judge, Andrew S. Hanen of Federal District Court in Brownsville, prohibited the Obama administration from carrying out programs the president announced in November that would offer protection from deportation and work permits to as many as five million undocumented immigrants. The first of those programs was scheduled to start receiving applications on Wednesday.

Judge Hanen, an outspoken critic of the administration on immigration policy, found that the states had satisfied the minimum legal requirements to bring their lawsuit. He said the Obama administration had failed to comply with basic administrative procedures for putting such a sweeping program into effect.

The administration argued that Mr. Obama was well within long-established federal authority for a president to decide how to enforce the immigration laws. But Texas and the other states said the executive measures were an egregious case of government by fiat that would impose huge new costs on their budgets.

The White House responded to the judge’s ruling in a statement early Tuesday, saying the president had acted within the law and with decades of legal precedent behind him in issuing the guidelines.

“The Department of Justice, legal scholars, immigration experts and the district court in Washington, D.C., have determined that the president’s actions are well within his legal authority,” the White House statement said. “The district court’s decision wrongly prevents these lawful, common sense policies from taking effect, and the Department of Justice has indicated that it will appeal that decision.”

In ordering the administration to suspend the programs while he makes a final decision on the case, Judge Hanen agreed with the states that the president’s policies had already been costly for them.

“The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country,” Judge Hanen wrote. “Further, the record supports the finding that this lack of enforcement, combined with the country’s high rate of illegal immigration, significantly drains the states’ resources.”

Ken Paxton, the attorney general of Texas, which is leading the states bringing the lawsuit, hailed the judge’s ruling as a “victory for the rule of law in America and a crucial first step in reining in President Obama’s lawlessness.” He said Mr. Obama’s actions were “an affront to everyone pursuing a life of freedom and opportunity in America the right way.”

Mr. Obama said he was using executive powers to focus enforcement agents on deporting serious criminals and those posing threats to national security. Three-year deportation deferrals and work permits were offered for undocumented immigrants who have not committed serious crimes, have been here at least five years and have children who are American citizens or legal residents.

As part of the package, Homeland Security Secretary Jeh Johnson also established new priorities, instructing enforcement agents to concentrate on deporting the most dangerous criminals, including terrorists and gang members, as well as migrants caught crossing the border illegally.

In his opinion, Judge Hanen accused administration officials of being “disingenuous” when they said the president’s initiatives did not significantly alter existing policies. He wrote that the programs were “a massive change in immigration practice” that would affect “the nation’s entire immigration scheme and the states who must bear the lion’s share of its consequences.” He said the executive actions had violated laws that the federal government must follow to issue new rules, and he determined “the states have clearly proven a likelihood of success on the merits.”

Since the lawsuit was filed on Dec. 3, the stark divisions over Mr. Obama’s sweeping actions have played out in filings in the case. Three senators and 65 House members, all Republicans, signed a legal brief opposing the president that was filed by the American Center for Law and Justice, a conservative legal action organization.

Joe Arpaio, the sheriff of Maricopa County in Arizona, who is known for crackdowns on people living in the country illegally, also filed a brief supporting the states’ lawsuit. In December, a federal judge in Washington dismissed a separate lawsuit by Sheriff Arpaio seeking to stop the president’s actions.

On the other side, Washington and 11 other states as well as the District of Columbia weighed in supporting Mr. Obama, arguing that they would benefit from the increased wages and taxes that would result if illegal immigrant workers came out of the underground. The mayors of 33 cities, including New York and Los Angeles, and the Conference of Mayors also supported Mr. Obama.

“The strong entrepreneurial spirit of immigrants to the United States has significantly boosted local economies and local labor markets,” the mayors wrote in their filing.

Some legal scholars said any order by Judge Hanen to halt the president’s actions would be quickly suspended by the United States Court of Appeals for the Fifth Circuit in New Orleans.

“Federal supremacy with respect to immigration matters makes the states a kind of interloper in disputes between the president and Congress,” said Laurence H. Tribe, a professor of constitutional law at Harvard. “They don’t have any right of their own.”

The states’ lawsuit quotes Mr. Obama as saying many times in recent years that he did not have authority to take actions as broad as those he ultimately took. Mr. Tribe said that argument was not likely to pass muster with appeals court judges.

“All of that is interesting political rhetoric,” he said, “but it has nothing to do with whether the states have standing and nothing to do with the law.”

Judge Hanen, who was appointed in 2002 by President George W. Bush, has excoriated the Obama administration’s immigration policies in several unusually outspoken rulings. The president's supporters have said that Texas officials, who are leading the states’ lawsuit, were venue shopping when they chose to file in Brownsville.

But at a hearing on Jan. 15, Judge Hanen said Brownsville, which sits on the border with Mexico, was an appropriate venue for the suit because its residents see the impact of immigration every day. “Talking to anyone in Brownsville about immigration is like talking to Noah about the flood,” Judge Hanen said.

In a lengthy and colorful opinion last August, Judge Hanen departed from the issue at hand to accuse the Obama administration of adopting a deportation policy that “endangers America” and was “an open invitation to the most dangerous criminals in society.”

The case involved a Salvadoran immigrant with a long criminal record whom Judge Hanen had earlier sent to prison for five years. Instead of deporting the man after he served his sentence, an immigration judge in Los Angeles ordered him released, a decision Judge Hanen found “incredible.” Citing no specific evidence, he surmised that the administration had adopted a broader policy of releasing such criminals.

While acknowledging that he had no jurisdiction to alter policy, Judge Hanen said he relied on his “firsthand, in-the-trenches knowledge of the border situation” and “at least a measurable level of common sense” to reach his conclusions about the case.

“The court has never been opposed to accommodating those who come to this country yearning to be free, but this current policy only restricts the freedom of those who deserve it most while giving complete freedom to criminals who deserve it least,” he wrote.

The mayor of Brownsville, Tony Martinez, was among those who filed court papers supporting Mr. Obama’s actions. “We see a tremendous value in families staying together and being together,” Mr. Martinez said on a conference call on Tuesday organized by the White House. “Eventually we hope to get all these folks out of the shadows,” he said.

 Frazzled wrote:
Don't worry, he'll ignore a judge as easily as he'll ignore the law.

 Ouze wrote:
I think the judge is wrong on this one. I don't think the Obama administration has defended the border as vigorously as it should have but nonetheless find that the execution of immigration policy and the setting of priorities pursuant to that is wholly and exclusively within the executive purview, no matter how incompetently it's done. That "it's costing us money" isn't a legal doctrine that trumps that, in my opinion.

This would have to be countermanded by Congress.

 Frazzled wrote:
Don't worry, he'll ignore a judge as easily as he'll ignore the law.

He doesn't need to ignore him. It will be bounced on appeal. I'm not a betting man generally but I'd put money on that.

Instant Analysis: Injunction in Texas v. United States

At 10:22 p.m., Judge Hanen issued his long-awaited decision in Texas v. United States, temporarily enjoining DHS from implementing DAPA.

(Disclosure: I filed a brief in support of Texas.) The injunction is here. The opinion is here. The 123-page decision is extremely thorough. It spends over 60 pages on standing, and the remainder on the procedural APA claim. It doesn’t even address the Take Care clause.

The opinion has two main parts.

First, it finds that the states have standing.

Second, it concludes that DHS lacks the discretion to institute DAPA.

The standing analysis tracks closely the arguments advanced by Texas, which I addressed here. In short, DAPA provides legal presence to aliens, who can then obtain drivers licenses in the states. This court concluded (correctly in my mind) that these licenses impose a cost on the states. The DOJ previously argued in the 9th Circuit that it was unconstitutional for Arizona to exclude DACA beneficiaries from receiving drivers licenses. The court found a similar analysis estops the government from claiming Texas can change its laws to deny DAPA beneficiaries licenses. The court (correctly in my mind) rejects the argument that DAPA will cause an influx of illegal immigration. This argument was too speculative. The standing analysis is really thorough. Contrary to what you may think, I am fairly confident this will stand up on appeal.

The merits, is another story.

The merits analysis begins on p. 68. On p. 92, the court explains that Congress knows how to “delegate discretionary authority,” and has not done so here.

On p. 98, the court finds a “complete abdication” under Heckler v. Cheney.


The court also makes a point I address in Part II of my series of DAPA–the Secretary, and not individual officers set the the policies. There is no individual discretion (p. 108).

In an extended footnote, the court explains that DHS could not identify a single applicant denied for DACA due to discretionary factors.


Although the court does not reach the constitutional issue, the “abdication” analysis under the APA claim mirrors what a constitutional “Take Care” analysis would look like. So the court tipped his hand how the constitutional analysis would come out.

The final portion of Judge Hanen’s opinion stresses over, and over again, that a preliminary injunction is warranted to maintain the status quo. This is an important point that has been stressed with the same-sex marriage litigation. Allowing 4 million people to sign up for DAPA cannot be undone. The President has said so himself. From p. 121:

I’m certain much of the analysis you will read focuses on Judge Hanen’s previous writings about immigration and executive power. The 123 page decision is extremely thoughtful and comprehensive. Unlike the drivel from the District Court in Pennsylvania that reached out to decide an issue that was not before him, Judge Hanen has authored an authoritative and measured analysis of a really difficult legal issue.

What next? As I noted in this post in December, once the preliminary injunction issues, this case will rocket up to the 5th Circuit, and to SCOTUS by the end of this term. The Court will have to resolve this issue, and cannot let it linger on the certiorari docket till next term. As if this term couldn’t get any more intense!

 timetowaste85 wrote:
I thought the article in the first post said 500million. Did I misread? Regardless, my view stands, no matter the amount.

 streamdragon wrote:
The approximate number of illegal immigrants is 270,000.

 djones520 wrote:
The number of illegals is around 5 million. The US population is only around 350 mil, so having 500 mil illegals would be a bit hard.

 Dreadclaw69 wrote:
So if we lose 375,000 illegal immigrants a year it'll be some time before we reduce the 11 million figure to somewhere approaching where it should be.

 SilverMK2 wrote:
Via the process of turning them into legal immigrants and eventually even citizens?

 Dreadclaw69 wrote:

 SilverMK2 wrote:
Via the process of turning them into legal immigrants and eventually even citizens?

No.

 Ouze wrote:

 Dreadclaw69 wrote:

 SilverMK2 wrote:
Via the process of turning them into legal immigrants and eventually even citizens?

No.

Listen man, there is only so much landscaping even Mitt Romney needs.