Constitutional Conflicts, Immigration

What you need to know about the big immigration hearing

(This article was originally published at Latino Rebels.)

Yesterday, a federal judge in Brownsville, Texas, heard arguments from 25 states and the federal government on whether to block President Obama’s executive order on immigration. Here’s what you need to know about Texas v. United States, the name the case has been assigned:

1) This Is Only the Beginning of the Lawsuit

The case before U.S. District Judge Andrew Hanen, a George W. Bush appointee, is still in its infancy stages. A trial, if one occurs at all, is still long ways away. But yesterday’s hearing was important because it could signal what could occur at trial. One of the questions Judge Hanen will be deciding is the states’ “likelihood of success on the merits”—that is, the likelihood that they actually have a winning case.

So far, that question is up in the air. Late last year, a federal judge in Washington, D.C. threw out a similar lawsuit by Arizona sheriff Joe Arpaio, noting in her decision that the sheriff likely could not win on his claim that the president acted unconstitutionally when he issued his new immigration directive. Part of yesterday’s hearing centered on this constitutional argument.

2) That said, the Judge Won’t Be Ruling on the Constitutionality of the Program

“This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution,” the states argued in court documents. That’s the bottom line of the states’ lawsuit: they seek the invalidation of the program on constitutional grounds. But the court won’t be deciding the constitutionality of the program. At least not yet.

Though that question certainly reared its head in yesterday’s hearing, Hanen will only be deciding whether to grant a preliminary injunction, an extraordinary remedy that prevents the allegedly offending party from hurting the party that’s suing—here, the federal government and the several states, respectively. It’s similar to a restraining order, a temporary court order that forbids conduct while the court reaches a final decision on a matter.

But the Supreme Court has said that a preliminary injunction is an extraordinary measure—courts shouldn’t grant them lightly. Which is why yesterday’s hearing was a big deal. And the burden will be on Texas and the other states to make a clear showing that they’re entitled to an order that puts a stop to the program.

3) To Grant an Injunction, the Judge Will Rule on Whether the Executive Order Causes Harm.

A key dispute the judge will decide is whether President Obama’s immigration order somehow “injures” the suing states. But the federal government and the states are interested in this particular dispute for different reasons.

The Obama administration argues the executive order doesn’t harm the states at all and thus the lawsuit should be dismissed altogether—that the states lack “standing” to sue. The government contends that the new deferred-action policy doesn’t mandate the states to take any action; the states aren’t themselves targeted by it. And because the states are “neither prosecuted nor threatened with prosecution” as a result of the executive order, they’re essentially third parties without a stake in government’s policy choices regarding immigration. They have no business bringing this lawsuit.

The states, on the other hand, not only argue that the executive order does harm them, but that it also “irreparably” harms them—that it injures them so severely that the judge must order an injunction to stop the program from even taking effect. The states assert, among other things, that the immigration plan imposes huge administrative costs on them, that it will set off a new wave of illegal immigration leading to another “humanitarian crisis” in border states, and that beneficiaries will be eligible for state programs that they otherwise wouldn’t be eligible for.

4) Which Side Has the Better Case?

There is broad consensus that the president has the better argument. A number of legal scholars and immigration experts have come out in favor of the constitutionality of President Obama’s executive order, which finds its roots in existing immigration law and longstanding prosecutorial discretion—the president’s prerogative to enforce or not enforce the laws with respect to deportations. And because Congress is in charge of passing immigration laws—yesterday, the House of Representatives did just that—Judge Hanen may be disinclined to settle a dispute between co-elected branches.

The federal government also has some allies. A coalition of 12 states filed a legal document in support of the new policy, arguing that its effects are beneficial for local economies. And an alliance of police chiefs from major cities submitted court documents arguing that the president’s order helps to “to effectively police and protect the communities they serve.” The aim of both these groups is clearly to counter the states’ claims that the new immigration policy harms them.

Some opponents of the measure, such as libertarian think-tank Cato Institute, do not focus so much on the harm aspect—in fact, the group thinks it’s “good policy”—but merely argue that the president engaged in executive overreach. They contend, among other things, that Obama violated the Constitution by failing to “take care that the laws be faithfully executed” and enacting a policy that simply advanced his agenda. Cato maintains that the new immigration order is in direct conflict with the will of Congress as expressed in immigration laws currently on the books.

This is a point to watch—Obama has said on numerous occasions that he can only act within the parameters of the law. A finding that the immigration order actually violates federal law would indeed undermine the whole program. But Judge Hanen won’t be deciding that any time soon—he’ll only decide the likelihood that that might be the case.

5) What’s Next?

A small waiting period. Because Texas and the other states are only seeking temporary relief, an order from the judge granting or denying the injunction shouldn’t take long—at the hearing, Judge Hanen said he won’t rule until after Jan. 30. (The judge who ruled on Joe Arpaio’s case only took one day to rule.)

If the federal government wins, the injunction would be denied and the case would be dismissed; the repercussions, other than an appeal, would be minor. A win for the states, however, could potentially deal a huge blow to the Obama administration and immigration advocacy groups, which have been engaging in significant prep work ahead of the new program’s rollout. It could cause major disruption unless a higher court intervenes. Win or lose, there would probably be an appeal. And given the significance of the executive order on immigration, the case might even reach the Supreme Court—before it even goes to trial.

Whatever the outcome, yesterday’s hearing is only the beginning of a case that could potentially drag on for years, politicizing the issue of immigration further as the litigation advancess. Since there’s agreement that millions would benefit from the new executive order, the quicker the court makes a decision and eliminates uncertainty, the better.

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Constitutional Conflicts, Immigration

The edifice of government won’t collapse

The day after the midterm elections, Sen. Ted Cruz sent a letter to Harry Reid, the Senate majority leader.

Oddly, the subject matter wasn’t the resounding Republican victory, but an impending “constitutional crisis”: President Obama’s plan to use executive action on immigration. Cruz urged Reid to use the lame-duck session to “restore the separation of powers.”

Lofty language, but America is not on the brink of a constitutional crisis.

Perhaps the closest the country ever came to one was in 1937, when Franklin D. Roosevelt, unhappy with the Supreme Court’s animosity towards New Deal policies, pushed for legislation aimed at filling the court with justices friendly to his economic ideals.

Had Roosevelt’s “court-packing” plan worked, it would’ve been a true constitutional crisis: A president wielding his power to convince Congress to change the makeup of an independent judiciary, for the sole purpose of rubberstamping legislation he liked.

In other words, getting all ducks in a row. Separation of powers would have been a joke.

But the crisis never materialized. The Supreme Court itself managed to avert it with its decision in West Coast Hotel Co. v. Parrish, which effectively upheld something Roosevelt had long sought: legislation advancing his vision of economic progress. In this case, it was Washington state’s minimum-wage law. The bill to pack the court died a natural death shortly after.

None of this should be news to Cruz—a Harvard Law graduate and himself former law clerk to a Supreme Court chief justice. Which makes it all the more curious that he’d call Obama’s imminent action on immigration a “constitutional crisis.”

It is nowhere near that.

For one, because executive action on immigration has nothing to do with the separation of powers. Obama is not making new law: he’s not promising green cards or otherwise offering federal benefits to undocumented immigrants. He’s merely expected to exercise his broad discretion to suspend deportations for the sake of keeping families together and giving peace of mind to people who pose no threat to public safety.

All of this is perfectly within the president’s powers. Family unity, it turns out, has been a cornerstone of executive action before, and no constitutional crises ever came of it.

In 1986, President Ronald Reagan signed into law the Immigration Reform and Control Act (IRCA), which provided a path to legalization for up to 3 million undocumented immigrants who had resided “continuously” in the country for a fixed period. The law, however, left out of the picture spouses and children who did not meet the law’s criteria.

There was huge political fallout from the exclusion—it threatened to disrupt families, which cut to the heart of Reagan’s stance on family values and unity. Congress tried to fix the problem, to no avail.

So the executive responded. Alan Nelson, Reagan’s immigration commissioner at the time, announced he would exercise the attorney general’s discretion to make sure children of parents who benefitted from IRCA were granted a deferral of deportation—the functional equivalent of Obama’s Deferred Action for Childhood Arrivals program from June 2012.

But the executive fix didn’t go far enough because it still left spouses and some children with one legalized and one undocumented parent unprotected from deportation. In July 1989, the Senate attempted to help these two groups by expanding IRCA to include them, but the House did not act.

Enter George H.W. Bush.

In what became known as the “Family Fairness” program, Bush boldly took up the failed Senate bill and implemented its main provisions via executive action. Gene McNary, the new immigration commissioner, predicted that up to 1.5 million family members would be spared from deportation under the new policy.

None of this, of course, caused a constitutional crisis.

If anything, executive action prompted Congress to step up to the plate and pass legislation that would provide even more help for families. It took Bush Sr. “going big” on immigration for the House to follow suit, leading to the passage of the Immigration Act of 1990. When Bush signed the law, he recognized its impetus was “family as the essential unity of society” and the country’s “historic commitment to family reunification.”

Families won the day. And like Reagan and Bush before him, there is a strong incentive for Obama to act on behalf of families when he moves unilaterally on immigration.

If the edifice of government didn’t collapse with prior executive action, it won’t collapse now.

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Constitutional Conflicts, Other Legal Battles

Obama, the lawless one

Congress didn’t do much during the year, but it went on summer vacation anyway.

In the interim, President Barack Obama has announced that it will act unilaterally to mitigate the immigration crisis. The president’s opponents have called his intent to act on immigration “lawless.”

The thing is, nobody knows what Obama is planning to do. All that’s known is that he plans to act before the congressional recess is up.

Some analysts predict the president will expand the deferred-action program, which has allowed thousands of undocumented students to not have to worry about deportation and to obtain lawful employment. It’s unclear how large the expansion will be, or whether it will include DREAMers’ family members.

Other predictions point to Obama relaxing rules defining who counts as a “low-priority” immigrant, that is, those who are not a risk to public safety.  If the rules change, it’s possible that persons who have been convicted of minor offenses—unlike serious or violent ones—will not be considered “deportable” and will be allowed to stay.

No matter Obama’s executive action on immigration, his critics in the House and the Senate have prejudged his plans. “Obama is acting lawlessly.” Others sound a louder alarm: “Obama is violating the Constitution.”

But is that so?

A look at history and Obama’s background reveals things aren’t as egregious as Republicans make them sound, and that the president does not need the permission of Congress to promote measures that are within his faculties as enforcer-in-chief.

The Constitution grants the president, as executor of the laws, the last word on how to enforce them. If he feels like it, he may choose not to enforce them. That’s what’s known as “prosecutorial discretion.”

Police do the same thing all the time. The law prohibits jaywalking, but you don’t see the NYPD arresting the thousands who jaywalk daily. Or issuing summonses to everyone who crosses the street with a red light. Or stopping every car that goes over the speed limit.

Kenneth Thompson, the Brooklyn district attorney, announced in July that he would not prosecute certain low-level drug offenses. His statement supporting the move was classic prosecutorial discretion: “This new policy is a reasonable response to the thousands of low-level marijuana arrests that weigh down the criminal justice system, require significant resources that could be redirected to more serious crimes and take an unnecessary toll on offenders.”

Of course, no one is going around calling Thompson lawless. (Though some have expressed reservations from a public-policy standpoint.)

Similarly, there are thousands of laws on the books the government never enforces—the statutes are either too old or the enforcers lack the resources to go after all the law-breakers. So government chooses not to prosecute. And that discretion is entirely within the province of the law enforcer.

In Obama’s case, what wouldn’t be within his province as chief law enforcer would be to go beyond what the law allows, like granting permanent residence to undocumented immigrants or federal benefits such as Social Security. That would be a lawless act.

But deciding not to do something—like not deporting certain persons without lawful status or making exceptions in special cases—is perfectly constitutional. Other presidents have done it—in areas such as immigration, criminal prosecutions, tax law, and administrative law. It’s nothing new.

Congress can continue enjoying its vacation.

(A version of this article was published in Spanish in the print and online editions of Los Angeles’ La Opinión.)

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