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This Ruling is Temporary and an Aberration:

DHS Directives on Immigration Will Ultimately Be Upheld as Constitutional

Late last night, Judge Andrew Hanen of the U.S. District Court in the Southern District of Texas

temporarily blocked the Department of Homeland Security from implementing the November 20th

 

deferred action directives issued by Secretary Jeh Johnson. Given Hanen’s history of over-reaching

extremist anti-immigrant decisions, most observers expected the judge would stretch the law to rule

this way. The judge’s deeply flawed ruling, while practically a foregone conclusion in light of his

predisposition, will delay implementation of common-sense measures designed to focus limited

enforcement resources on criminals and national security threats. The decision, however, is only a

temporary setback; Judge Hanen will not be the final arbiter of the legality of these measures. And we

are confident that as the judicial process moves forward to the higher courts, the DHS directives will be

deemed constitutional and will be fully implemented.

Background on the lawsuit:

- In December, governors and attorneys general from 26 states sued the government to block the

DHS directives from going in to effect.

- Make no mistake: This is a partisan political attack disguised as a lawsuit. Every single governor

that signed onto the lawsuit, and all but one of the attorneys general were Republicans. The vast

majority of states suing the president have few undocumented immigrants, and few potential

beneficiaries. In fact states and cities supporting executive action have more than 1.6 times as many

foreign born residents as those opposing. And more than half of foreign born residents in the entire

U.S. live in states and cities supporting executive action, while less than one third live in states

opposing.

- The plaintiffs in this suit, led by now-Governor Greg Abbott (R-TX)  shopped around for a

sympathetic judge, and found it in Judge Hanen. Hanen has a history of strongly criticizing DHS,

going so far as to argue that DHS was acting dangerously by reuniting an undocumented mother and

child without filing criminal charges or initiating deportation proceedings. As one legal expert put it,

“the Obama Administration might as well attempt to defend its policy before Judge Ted Cruz.” 

- And while these 26 states speculatively claim that these directives will harm them, 12 states plus

the District of Columbia, 33 cities (including the largest cities in the nation like Houston, which is

within a state suing the president), police chiefs, and NGOs have all filed amicus briefs arguing that

significant fiscal, economic, and national security benefits will accrue from these measures.

What happens next:

- The Department of Justice will apply for an emergency stay of Judge Hanen’s ruling to the 5th

 

Circuit Court of Appeals. How the court rules on that request will impact whether the programs can

continue to be implemented pending a final decision in the litigation.

- If the 5th

 Circuit grants the emergency stay, 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

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temporary injunction remains in effect, implementation of the DACA expansion and DAPA programs

will be delayed. This delay has no bearing on requests or renewals for DACA under the original 2012

policy directive.

- While we expect a decision on the emergency stay within a couple of weeks, the 5th

 circuit will

likely take several months to rule on the underlying legality of the directives.

- Whether in the 5th

 Circuit, or even if the case makes it all the way to the Supreme Court, we are

confident that both the law and precedent are on our side, and that the DHS directives will go in to

effect.

Why we are confident that DHS’s directives will proceed:

Lawsuits against similar executive action have failed in the past

- In 2012 Mississippi challenged the legality of the DACA program in a case similar to this 26-state lawsuit. There, Judge Reed O’Connor dismissed Mississippi’s case, arguing that the

perceived economic hardship the state claimed would result from executive action was“purely

speculative.” 

- In December of last year, Judge Beryl Howell threw out a lawsuit by anti-immigrant Sheriff  Joe

Arpaio challenging executive action. In rejecting Arpaio’s challenge, Judge Howell asserted that

the role of the courts is “not to engage in policymaking better left to the political branches,” in

effect calling Arpaio’s suit nothing more than a politically motivated stunt.

The Supreme Court has already ruled that the administration has “  broad discretion”  in immigration

- In 2012, the Supreme Court struck down much of Arizona’s anti-immigrant law, S.B. 1070. Inhis opinion for the majority, Justice Kennedy argued that the administration has “broad

discretion” when it comes to choosing who to deport and who not to. This prosecutorial

discretion lies at the heart of the DHS directives.

Legal scholars agree on the legal authority underpinning these directives

- In September, 136 legal scholars from across the political spectrum wrote a letter to the

president urging him to take executive action, and laying out the broad legal authority for taking

executive action on immigration. These scholars reaffirmed the legality of the DHS directives after

they were announced in late-November.

- On the same day the president announced the DHS directives, 10 preeminent legal scholars,including Harold Koh, former State Department legal adviser, Lee C. Bollinger, president of

Columbia University, and Walter E. Dellinger III, the former head of the Office of Legal Counsel and

acting Solicitor General, sent a letter to the president attesting to the legality of executive action.