Federal Court Stops Obama’s “Immigration Executive Order” 

As you probably know, on February 16, 2015 the U.S. District Court in Texas (Judge Andrew Hanen) determined that the so-called Obama Immigration Executive Order to be invalid and issued an injunction against its implementation.  This has been misreported, mischaracterized and misunderstood.  Further, in an effort to get full funding for the DHS, the consequences are being misrepresented in Washington D.C.. 

First, the Executive Order: - - there isn’t one.  President Obama apparently gave an oral directive of some sort to the DHS, but there is no official executive order.  Instead, the subject of the Texas Lawsuit in which 26 states filed suit, is multiple memoranda issued by Jeh Johnson, Secretary of DHS (Department of Homeland Security) on November 20, 2014.  Johnson’s memoranda establish “a new program utilizing deferred action to stay deportation proceedings and award certain benefits to approximately four to five million individuals residing illegally in the United States.”  Op. at 7.  This was to be done through the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DARPA”).  The relevant memorandum is known as the “DARPA Memo”.

The 123 page opinion dealt with the following issues:  “(1) whether the States have standing to bring this case; (2) whether the DHS has the necessary discretion to institute the DAPA program; and (3) whether the DAPA program is constitutional, comports with existing laws, and was legally adopted.”  Court Opinion p.6.  The States claim that the DARPA Memo violates the Take Care Clause of the US Constitution and the Administrative Procedure Act (the “APA”).  Op. at .

The first 68 pages of the Opinion discuss the background,, the facts and “standing.”  Standing is the legal question if a plaintiff has sufficient interest in the litigation to bring the lawsuit.  (For example, Individual 1 cannot sue Company X for its breach of a contract Company X has with Individual 2; only Individual 2 has the “standing to do so.)  After lots of discussion of the doctrine of standing and analysis of many cases, the court concluded that the state of Texas, and possibly other states, have standing. 

The Court then discussed whether Plaintiffs are entitled to a preliminary injunction, which is not the final decision, but just determines what will happen until the Court issues its final decision.  The court determined that the DARPA Memo is more than just an exercise of “prosecutorial discretion” as the administration argued, but rather a completely new policy with no discretion at all.  The Court held that it Plaintiffs are likely to succeed on their claim that DARPA Memo was put in place without complying with the Notice and Comment Procedure requirements of the APA.  Contrary to media buzz and common belief, the Court did not address the constitutional question of whether the DARPA Memo violated the Take Care Clause of the Constitution.  This is consistent with established doctrine to look first at statutory issues and address constitutional issues only if the controversy cannot be resolved by statutory interpretation.  Op. at 73- 112 and esp. 122.   Among other things, the Court stated that DHS cannot “enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them. . . . The DHS Secretary is not just rewriting the laws; he is creating them from scratch.”  Op. at 99.  The Court further explained that the DARPA Program gives 4.3 million illegal immigrants “the right to receive a myriad of governmental benefits to which they would not otherwise be entitled.”  Op. at 111.  The program “contradicts” the Immigration and Nationality Act and is “in effect, a new law.”  Op. at 111.  The Court further found that the States are likely to suffer substantial and immediate irreparable injury if the injunction is not granted because “legalizing the presence of millions of people is a ‘virtually irreversible’ action once taken.”  Op. at 115.  The Court then concluded that an injunction is the only way to keep the status quo while the legality of the DARPA Program is finally determined, and therefore entered an injunction against the implementation of the DARPA Program. 

The Administration has filed a Notice of Appeal to the Fifth Circuit Court of Appeals, generally considered to be a “conservative” court of appeals.  The Administration also filed in the District Court a Motion to Stay the February 16 Order pending the results of the appeal.  The District Court will almost certainly deny that motion.  The Administration will certainly file a similar motion in the Fifth Circuit.  Given the strength of the District Court’s opinion and the make-up of the Fifth Circuit Court of Appeals, a reversal seems unlikely. 

One more issue.  There have been suggestions that, since the Court took this step, there is no reason for Congress to withhold funding for the implementation of the DARPA Program.  To the contrary, if Congress funds the DARPA Program, it could be considered tacit approval for DHS to move forward with the program and could be used by the Administration to pressure the Court to fulfill the wishes of both the Administration and Congress.  It is best if Congress withhold funding pending complete resolution by the Courts. 

See Texas v. United States; S.D. Texas, Case No. B-14-254.
 
David Tryon
CVR Member
Partner, PorterWright.
Former School Board President, Brecksville/Broadview Hts.