EDITORIALBy THE EDITORIAL BOARD
FEBRUARY 17, 2015
President Obama surely knew that his recent executive actions to protect millions of undocumented immigrants from deportation would run into trouble as soon as a 26-state lawsuit opposing the actions landed on the desk of Federal District Judge Andrew Hanen, of Brownsville, Tex.
Judge Hanen — who last month invoked a biblical flood in describing illegal immigration into that community — has spoken out aggressively against Mr. Obama’s immigration policy in the past, saying it “endangers America” and is “an open invitation to the most dangerous criminals in society.” Indeed, his earlier opinions were the reason Republican governors and attorneys general pushed to get their suit into his district.
As expected, the judge on Monday night temporarily blocked the first of several programs Mr. Obama announced in November to offer work permits and a three-year reprieve from deportation to more than four million immigrants who are parents of American citizens and who have no criminal record.
That move — which Mr. Obama took only after years of failed efforts by Congress to pass any immigration reform — triggered the fury of congressional Republicans, who responded with threats of, among other things, impeachment proceedings.
Gov. Greg Abbott of Texas was so excited at Monday’s decision that he jumped on Twitter to say Mr. Obama’s amnesty order “has been ruled unconstitutional.”
No, it hasn’t.
What Judge Hanen did was to issue a preliminary injunction that prevents the executive action from going into effect until he can rule on the merits of the lawsuit itself, or until a higher court reverses him.
What he did not do was dispute the president’s broad authority to decide whom to deport, which is exactly what the Obama administration did in prioritizing the removal of immigrants who pose a threat to public safety or national security. Yet the judge blocked the action, which he called “a massive change in immigration practice.” On Tuesday, administration officials announced that they would delay the program, which was scheduled to begin this week, while they appealed the ruling.
To get to where he clearly wanted to go, Judge Hanen first had to find that the 26 plaintiff states have standing — that is, the legal capacity — to sue the administration over the new policy. He ruled that at least Texas did because the actions would force the state to spend scarce resources providing things like driver’s licenses to undocumented immigrants.
Judge Hanen said the costs were the result of the federal government’s “failure to secure the borders,” and he noted the millions of dollars that states spend to educate “each illegal alien child,” even though, as he knows, the Constitution already requires states to provide that education.
He danced around the fundamental point — as the Supreme Court reiterated as recently as 2012 — that setting immigration policy is the prerogative of the federal government, not the states. The judge also ruled that the states are likely to succeed on at least one of their underlying claims, which is that the White House did not follow proper administrative procedure, which requires certain executive actions to be preceded by a public notice and comment period.
However the appellate courts come down on the case, Mr. Obama is finding himself once again dealing with a familiar sort of Republican intransigence. With his humane and realistic immigration policy, he is trying to tackle a huge and long-running national problem: what to do with more than 11 million undocumented people who are living, working and raising families here, when the government cannot possibly apprehend or deport all of them. To the contrary, bringing some of these people out of the shadows of illegality would be an economic boon, as noted by the 12 states and more than 30 cities around the country (including Brownsville, Tex.) that are defending Mr. Obama’s actions.
On immigration, the Republicans seem to want only to savage the president’s efforts to address a pressing nationwide crisis, just as they have on health care reform. They are good at unleashing rage against Mr. Obama’s supposed lawlessness, but they have no meaningful solutions of their own.