Unpacking the Injunction Against Obama’s Immigration Action

On Monday, a federal judge issued an injunction against President Obama’s executive actions granting citizenship to more than 4 million illegal immigrants.

Judge Andrew S. Hanen, a judge for the Federal District Court for the Southern District of Texas, issued the 123-page decision after hearing arguments in a lawsuit brought by 26 states against the federal government. Opportunity Lives unpacks that decision.

Judge Hanen begins his decision by referring to a comment from Chief Justice John Roberts, made while the Supreme Court was considering the constitutionality of the Affordable Care Act. “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions,” said Roberts.

According to Hanen, this decision relies on the same justification. Opinions on whether the policy constitutes amnesty are irrelevant in resolving the legal justification of the administration’s action. 

What is interesting to note is that the president has technically not signed an executive order on the immigration policy – the “executive action” referred to by the decision (and major media outlets) is a memo by the Secretary of the Department of Homeland Security (DHS), Jeh Johnson. The president has championed this memo as action by his administration.

“The DHS Secretary is not just rewriting the laws; he is creating them from scratch.”

In the lawsuit, the states contrasted Obama’s earlier claims that he did not have the authority to act on immigration with his comments now, suggesting that he had to act because Congress would not. The states argue that the the president has exceeded his authority “solely because he wanted the law changed and because Congress would not acquiesce in his demands,” said Hanen. “Obviously, the Government denies these assertions.”

Hanen found that the states have standing to pursue the lawsuit because of financial injury. In Texas, for example, hundreds of thousands of illegal immigrants will be newly eligible for driver’s licenses. Even if only 5 percent of those newly-eligible apply for a license, Texas will lose several million dollars processing these licenses. Other states will experience similar costs.

In a somewhat humorous move, Judge Hanen quoted from the civics examination for those applying for citizenship. Question 42 says, “Under our Constitution, some powers belong to the states. What is one power of the states?” One correct answer is “give a driver’s license.” Yet, Hanen argued, many of the fees necessary in processing licenses go back to the federal government. In essence, this law forces states to bear an added financial burden by giving licenses to illegal immigrants and remit some of that burden back to the federal government.

Thus, the states have standing in this case because they suffer real damages and have no ability to substantially affect immigration policy (i.e. negotiate with Mexico or pass their own laws) because of control by the federal government.

Judge Hanen noted an important responsibility of the federal government, both in this case and others: “[T]he federal government, under our federalist system, has the duty to protect the states, which are powerless to protect themselves, by enforcing the immigration statutes.” That duty has not been properly executed in recent years.

Jeh Johnson

Homeland Security Secretary Jeh Johnson has said the Justice Department will appeal Judge Hanen’s ruling, but admitted DHS must start to enforce the injunction.

Though the DHS has “broad discretion” to execute laws, it does not have the authority to make them, said Hanen. “The Government has pointed this Court to no law that gives the DHS such wide-reaching discretion to turn 4.3 million individuals from one day being illegally in the country to the next day having lawful presence.”

By refusing to enforce Congress’s laws on deportation and now actively contradicting them, the DHS has exceeded its authority, said Hanen. “The DHS Secretary is not just rewriting the laws; he is creating them from scratch.”

Judge Hanen defended the injunction by saying that it is in the foremost public interest to make sure that the actions of the Executive Branch “comply with this country’s laws and its Constitution.” As such, it is important to delay the immigration action until the legal issues can be resolved.

In a statement, Secretary Johnson said he “strongly disagreed” with the injunction. “The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it,” he said.

The president, however, said the DHS will continue preparations for the new immigration policy.

Daniel Huizinga is a columnist for Opportunity Lives covering business and politics. Follow him on Twitter @HuizingaDaniel.