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Immigration Q&A: What Happens Now In The Legal Fight Over Obama’s Plans?

Politics Tribune News Service

Immigration Q&A: What Happens Now In The Legal Fight Over Obama’s Plans?


By David Lauter, Tribune Washington Bureau (TNS)

WASHINGTON — The court fight over President Barack Obama’s plan to shield as many as 5 million immigrants from deportation involves a number of complex legal issues. U.S. District Judge Andrew S. Hanen in Texas issued an order late Monday at least temporarily blocking the program from going forward.

Here are answers to some frequently asked questions about the case and the ruling.

What would the administration’s program do?

The program would “defer action” for a large class of immigrants currently in the country without legal authorization. They would not receive citizenship or legal status, but would not be at risk of deportation so long as the deferred action remained in effect. Under rules that have been in place for many years, immigrants with deferred-action status are also allowed to work legally in the U.S.

What legal authority does Obama claim for deferred action?

The government has had some form of deferred action since at least the 1960s. Executive branch officials have argued — and courts have agreed — that the president and the executive branch agencies that work under him have significant discretion over which immigrants to deport. The legal justification is that the government has limited resources and that federal agencies can set priorities.

“The decision to prosecute or not prosecute an individual is, with narrow exceptions, a decision that is left to the executive branch’s discretion,” Hanen agreed in his opinion Monday.

What’s the legal argument on the other side?

Discretion isn’t unlimited. The government can’t completely rewrite the law under the guise of setting priorities. The legal issue is whether Obama’s program is so big and far-reaching that it goes beyond what can be justified as executive discretion. The plaintiffs in the case before Hanen, 26 Republican-led states, have a strong case that the administration did go too far, the judge ruled.

The administration cannot “establish a blanket policy of non-enforcement that also awards legal presence and benefits to otherwise removable aliens,” the judge wrote. The executive branch has “discretion in the manner in which it chooses to fulfill the expressed will of Congress” but cannot set up a program that “actively acts to thwart” what Congress intended, he wrote.

The Obama administration says the 26 states have no legal right to sue in this case. Why?

Federal courts only allow cases to proceed when the person or group bringing the case meets the legal standards for what is known as standing. To have standing, people or groups need to show several things, including that the action they want to challenge will have a direct, provable impact on them.

That rule is designed to prevent litigants from dragging courts into abstract disputes rather than what the Constitution limits them to considering, an actual “case or controversy.” The administration argues that although Republican officials disapprove of Obama’s decision, the states themselves will not suffer any actual injury.

What did the judge say?

Hanen ruled that the states would suffer an actual injury because the deferred-action program would cost them money. For example, states would probably be required to issue driver’s licenses to immigrants with deferred-action status, he wrote. Because of that, the states have standing, the judge ruled.

Did the judge make a final ruling on the case?

No. Monday night’s ruling said that the states could take their claim to a full trial, which might not take place for months. In the meantime, the judge issued an injunction blocking the administration from starting the new deferred-action programs.

“There will be no effective way of putting the toothpaste back in the tube” if the government starts granting immigrants deferred status, the judge wrote.

What happens now?

The government has said it will appeal. The case would go to the U.S. 5th Circuit Court of Appeals, which could decide to leave Hanen’s preliminary injunction in place until the judges of that court can hold a hearing on the matter. The appeals court could also dissolve the injunction.

The judge said the administration may have failed to follow proper procedures in drawing up the new program. What’s that about?

The federal government has a law, known as the Administrative Procedures Act, which lays out the steps that agencies must take when they issue new rules. Those typically include notice and an extended period for public comment, often between 18 months and two years. The states argue that the Department of Homeland Security should have been required to follow those procedures in setting up the deferred-action program. The administration says this is not the kind of program that is covered by those procedural requirements. Although the judge did not make a final ruling on that question, he clearly sympathized with the states’ argument.

AFP Photo/John Moore



  1. Wayneo February 17, 2015

    Seems to me that this is the start of a slippery slope where the children have to pay for the “sins” (illegal acts) of the parents.

    In any case I think it is nasty and unchristian of the GOP.

    1. James Bowen February 18, 2015

      This is not about punishment. This is about the fact that the U.S. has limits to how many people it can support. We simply do not have the resources to take in the world’s unfortunate children.

      1. Wayneo February 18, 2015

        They are already here. Who let them in years and years ago? Most do more for our economy than they take from it.

        1. James Bowen February 18, 2015

          The American people did not invite them here– corrupt, greedy employers did. They should not be here though, and current law calls for their expulsion. Past lawbreaking is not a legal justification for present and future lawbreaking.

          Also, they take far, far more from our economy than they give. The only ones who gain from their presence, other than themselves, are their employers. Meanwhile, the rest of us are stuck with the bill in the form of depressed wages, overused infrastructure, and diminished quality of life.

          1. Wayneo February 18, 2015

            I did not say invite, I said let. The politicos is who let them. And it’s those corrupt, greedy employers who depressed wages. And the politicos who let them.

          2. James Bowen February 18, 2015

            Yes, but the wages will remain depressed if they are allowed to stay. Supply and demand is what determines wages in the labor market.

          3. jmprint September 3, 2015

            No the republicans keep the wages down on purpose, and the Koch brothers love them for it. Congress failed us when they didn’t raise the minimum wage to keep up with inflation.

          4. James Bowen September 3, 2015

            An increased supply of labor, which illegal (and legal) immigration causes, puts downward pressure on the cost of labor (i.e. wages and salaries), minimum wage notwithstanding.

          5. jmprint September 3, 2015

            You reap what you sow, if your quality of life is diminished, it’s your cause. Those huge oil rigs that damage our infrastructure, they are the blame, not these little children.

          6. James Bowen September 3, 2015

            These little children are more mouths to feed, more students to educate, and someday more adults that need jobs and breeders of more children. In other words, they increase the depletion of our natural resources. The U.S. is overpopulated, and immigration is the reason why.

          7. jmprint September 3, 2015

            James you are always crying about the population being over crowed. Why, soon you will be gone and it won’t matter.

          8. James Bowen September 3, 2015

            It will matter to those future generations who come after me.

          9. jmprint September 3, 2015

            You area really grasping aren’t you!

          10. James Bowen September 4, 2015

            How is that grasping? The non-renewable resources which enabled us to launch the industrial revolution and now enable us to feed 7 billion people will only last for a few centuries at most at current rates of consumption. I’m sure glad past generations didn’t consume everything and leave us nothing.

            Using completely renewable agricultural methods, the U.S. can only sustain indefinitely 150-200 million people. The numbers are probably similar for China, India, Russia, and Europe. If we want to avoid a Malthusian correction in the future, we have to gradually reduce our numbers. Worldwide, that means sub-replacement fertility. In the U.S., Canada, and increasingly the rest of the first world, that means maintaining low birth rates and reducing immigration to very minimal levels.

  2. Thomas Aquinas February 18, 2015

    The citizens of these states owe illegal aliens nothing.

    1. jmprint September 3, 2015

      They are just doing what your ancestors did, when they got of the boat, they weren’t citizens either.

  3. James Bowen February 18, 2015

    Good news. Let’s hope it is sustained.

  4. gunslinger February 18, 2015

    O’barrybama believes if you bang on a door long enough it will open. Just like thieves do when given the opportunity to loot stores during a crisis! The minute they received the nod they will demand voting rights, welfare, and all the benefits of real citizens! The pest control people don’t have to exterminate the offspring but feeding them only encourages more to come. These libby dems want to dare to limit my gun rights while giving rights to people not deserving of them. Buying votes by not enforcing the law is pure BS. What is their plan for stopping the invasion??? Didn’t work in the past… won’t now!

    1. jmprint September 3, 2015

      If you are a citizen, you are a citizen, there is no difference between a citizen and a real citizen. They are humans trying to have a better life. Nobody is limiting you gun rights, that is a natural born paranoia. You are wrong to accuse the democrats of wanting to help the humans for votes. It is just the humanitarian way of doing what the Lord ask of us.

  5. Al Isson February 19, 2015

    The good citizens of Illinois are wasting $3.1 billion per year attempting to educate illegal alien offspring.

    1. jmprint September 3, 2015

      They are not aliens, they are human beings, and I am sure their parents help the economics with what they purchase. I’m sure Walmart doesn’t frown.


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