U.S. District Judge Andrew Hanen delivered a major blow to President Barack Obama’s unilateral executive action on immigration with a preliminary injunction in Brownsville, Texas. The case involves a challenge by 26 states and, to succeed, the states had to meet a high standard that they were likely to prevail on the merits in the case. Hanen found that, absent an order, the states will “suffer irreparable harm in this case.” The ruling sets up an appeal that could move the case more rapidly through the system in yet another challenge to the President’s unilateral actions. [For the purposes of full disclosure, I have previously testified against the President’s unilateral actions and I am currently serving as lead counsel to the House of Representatives in its challenge to such actions taken with regard to the Affordable Care Act.]
The case enjoins some provisions scheduled to take effect this week. For example, Obama ordered the expansion of a program that to protect young immigrants from deportation if they were brought to the U.S. illegally as children. The case also deals with an order extending deportation protections to parents of U.S. citizens and permanent residents who have been in the country for some years.
Judge Hanen wrote that “The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country. . . Further, the record supports the finding that this lack of enforcement, combined with the country’s high rate of illegal immigration, significantly drains the states’ resources.”
Hanen has previously expressed frustration with the lack of border and immigration enforcement. In December 2013, he handled an immigration smuggling case where he expressed dismay over the Administration essentially facilitating conspiracies to violate federal law by reunited families and not deporting violators. In one case involving the sentencing of a smuggler, Hanen lashed out at the federal government and noted that “[i]nstead of arresting (the child’s mother) for instigating the conspiracy to violate our border security laws, the (Homeland Security Department) delivered the child to her — thus successfully completing the mission of the criminal conspiracy.” Hanen added “DHS has simply chosen not to enforce the United States’ border security laws.”
The Justice Department always has the advantage in such appeals given past cases deferring to the Executive Branch on immigration, though the opinion below raises some significant concerns.
The case will now likely go to the United States Court of Appeals for the Fifth Circuit in New Orleans (where I clerked after law school).
Here is the lengthy opinion: Immigration Opinion
Source: NY Times