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“Ignoring Basic Principles Of Government”: Texas Judge’s Immigration Ruling Is Full Of Legal Holes

U.S. District Judge Andrew S. Hanen’s decision to block the Obama plan to defer deportation for about 5 million immigrants here illegally ignores a basic principle of government: For better or worse, the executive branch of government always has discretion as to whether and how to enforce the law.

The judge’s lengthy opinion is wrong as a matter of law and, worse, is based on xenophobia and stereotypes about immigrants. It is very likely to be overturned by the U.S. 5th Circuit Court of Appeals, and, if necessary, the Supreme Court.

Every president must set enforcement priorities on immigration, choosing whom to prosecute or whom to deport. No administration brings prosecutions against all who violate the law. Resources make that impossible, and there are laws on the books that should not be enforced.

Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States. For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses not to bring deportation actions. In fact, as recently as three years ago, the Supreme Court in United States vs. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the president to choose whether to bring deportation proceedings.

That is exactly what President Obama’s executive orders on immigration have done. He has announced that the federal government will not seek to deport 600,000 young people who were illegally brought to the U.S. as children, or the undocumented parents of U.S. citizens and permanent residents who have resided in the country for at least five years. Millions of parents would be able to remain with their children because of this order and not need to live every day in fear of deportation.

The judge’s order makes several basic legal mistakes. For example, the law is clear that a federal court has jurisdiction to hear a matter only if the federal court’s decision would solve the problem. If the court’s decision would have no effect, it would be nothing but an advisory opinion, which is prohibited by the Constitution. Thus, the Supreme Court long has held that a party has standing to sue in federal court only if a favorable decision would “redress” its injury.

The lawsuit in Hanen’s court was brought by state governments that object to the Obama orders, claiming injury by the presence of immigrants here illegally. But the federal government deports only about 400,000 such immigrants a year. It is entirely speculative that stopping the executive orders would have any effect on the states that brought the suit. In fact, it is unclear what the judge’s order will mean. He cannot force the Department of Homeland Security to deport anyone.

The central argument in Hanen’s ruling is that the executive branch must promulgate a formal rule to defer deportation of these individuals. But the federal government constantly sets enforcement priorities without a formal rule. The Justice Department’s policies to not prosecute possession of small amounts of marijuana or credit card fraud below a designated dollar level, for example, were not adopted by formal rules.

In fact, recent presidents, including Republican ones, have deferred deportations without formal rules. In 1987, in response to political turmoil in El Salvador and Nicaragua, the Reagan administration took executive action to stop deportations for 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, post-Tiananmen, stopped deportations of Chinese students. He kept hundreds of Kuwaiti citizens who were illegally in the United States from being deported after Saddam Hussein invaded their nation. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of El Salvador’s president, and ordered that deportation decisions include consideration of factors such as whether a mother was nursing or whether the person in question was a U.S. military veteran.

Judge Hanen, appointed to the federal bench by George W. Bush, has the reputation of being especially conservative on immigration issues. That tone underlies his opinion, especially as he spoke of immigrants being “terrorists” and “criminals.” What he misses, though, is that the point of Obama’s executive orders was to set enforcement priorities to focus deportations on terrorists and criminals and not on breaking up families.

It is not surprising that a conservative Republican judge would try to stop the Obama immigration policy. But it is just the first word and one unlikely to be sustained on appeal.

 

By: Erwin Chemerinsky, Dean of the UC Irvine School of Law; Samuel Kleiner, a Fellow at the Yale Law Information Society Project; The Los Angeles Times; The National Memo, february 20, 2015

February 23, 2015 Posted by | Deportation, Executive Orders, Immigration | , , , , , , , | Leave a comment

“A Long History Of Pleasing Conservatives”: Meet Conservatives’ New Favorite Judge

Few outside of a tiny Texas border town knew who Federal District Court Judge Andrew Hanen was until Monday night when he became a right-wing hero.

But this isn’t the first rodeo the judge who delayed implementation of the Obama Administration’s executive order on immigration.

Hanen, a federal district court judge in Brownville, Texas, has a long history of taking a conservative approach to immigration issues in his courtroom, which is located just over a mile from the Mexican border.

The once obscure justice, whose only other previous claim to fame was serving as the President of the Houston Bar Association 15 years, has now made himself a right wing celebrity.

But his ruling on Monday is by far the most consequential that the George W. Bush appointee has ever issued.

He first gained notice for his willingness to entertain the arguments of landowners on the Mexican border who opposed the construction of a fence on their land by the federal government.

The Texas Observer described him in 2010 as “the only federal judge in the nation who forced Homeland Security to acknowledge landowners’ constitutional protections. In case after case, Hanen refused to rubber-stamp the condemnations and ruled that the government would have to provide ‘fair compensation’ for the land it was taking.”

But Hanen became a darling of immigration hawks in a 2013 order in which he vented against a decision made by the DHS not to deport a woman in the country illegally who had paid for her daughter to be smuggled into the United States.

While the smuggler was sentenced to jail, the government allowed the woman and her daughter to remain in the country under a 1997 settlement agreement.

Hanen was not pleased.

In an order he attacked the DHS’s “apparent policy … of completing the criminal mission of individuals who are violating the border security of the United States” and compared the action to “taking illegal drugs or weapons seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation.”

Hanan’s order may not have been binding but it certainly electrified many conservatives as one of the most powerful statements from a federal judge on the issue.

On Monday he made good for conservatives again.

Hanan ruled in favor of 25 states that sued the federal government to stop the implementation of a 2014 executive order to allow millions of undocumented immigrants to apply for “deferred action” from the Department of Homeland Security (DHS). This executive order enabled the undocumented immigrants to work legally and avoid deportation for several years—a move many Republicans have decried as “executive amnesty.”

Hanen didn’t reach a final decision but instead issued a preliminary injunction, which keeps DHS from enforcing the executive order until a final decision is issued.

His injunction though is not expected to last.

The federal government is expected to appeal to the 5th Circuit Court of Appeals in New Orleans and is considered likely to get Hanen’s ruling overturned in that venue.

However, in the mean time, the decision to delay the executive order has major political ramifications in Washington DC where a potential partial government shutdown is looming over this issue.

But no matter what happens in this standoff, there is one clear winner: Judge Hanen.

Immigration reform is likely to remain a quagmire and Congress will continue to be dysfunctional. But, at least, Hanen will increase his Q-rating and become the most consequential federal judge ever to sit in the Brownsville Division of the Southern District of Texas.

 

By: Ben Jacobs, The Daily Beast, February 17, 2015

February 18, 2015 Posted by | Conservatives, Deportation, Immigration | , , , , , , , | 1 Comment

   

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