5 Key Findings From The Injunction Blocking Obama's Amnesty

Conn Carroll
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Posted: Feb 17, 2015 2:00 PM
5 Key Findings From The Injunction Blocking Obama's Amnesty

United States District Court Judge Andrew Hanen's very thorough 123-page opinion explaining his decision to issue an injunction blocking President Obama's Deferred Action for Parental Accountability program covers a multitude of legal and factual issues. Here are the five most important points from the decision:

The DAPA Program Directly Causes Significant Injury To States
A key hurdle that any plaintiff must clear in any law suit is establishing the "standing" to sue in court. In order to establish standing, a plaintiff must show how the defendant's actions caused the plaintiff a specific and significant harm. Many legal experts believed that demonstrating how Obama's DAPA program harmed states would be the plaintiffs most difficult issue.

The states solved this problem by identifying a number of services they would be required to provide to formerly-illegal immigrants if the DAPA program were to move forward. The court spends the majority of the time on drivers licenses, specifically the $174.43 it would cost Texas for each of the tens of thousands of DAPA recipients who are likely to apply for drivers licenses once they obtain legal status through the DAPA program.

The Obama administration tried to argue that states would be free not to offer drivers licenses to DAPA recipients, but Judge Hanen noted that when Arizona tried to do exactly that for DACA recipients the Obama administration told a federal court they had no choice.

Judge Hanen also noted that, thanks to other federal laws, Texas paid $716,800,000 in health care for illegal immigrants in 2008 and Wisconsin was forced to pay $570,748 in unemployment benefits to DACA recipients. Each of these cases are examples of direct financial harm to states directly caused by executive non-enforcement of immigration law.

Congress Never Created Or Authorized Deferred Action Status
Defenders of Obama's DACA and DAPA programs often note that the Supreme Court has been very clear about the supremacy of the federal government over the states on immigration policy. 

But, as Judge Hanen notes very early in his opinion, "deferred action," the legal basis for Obama's DACA and DAPA program, was never created by Congress. "Deferred action is not a status created or authorized by law or by Congress, nor has its properties been described in any relevant legislative act," Hanen writes on page 15. "The Government must concede that there is no specific law or statute that authorizes DAPA," he repeats on page 90.

Instead, Hanen notes, the Obama administration relies on two "general grants of discretion" in immigration law to support the DAPA program. But, as Hanen goes on to explain, if anything these statutes create separate and specific ways the Secretary of Homeland Security can offer legal status to illegal immigrants. But Obama's DAPA program does not follow the processes these two other statutes created. Instead, DAPA created a brand new program out of whole cloth after Congress specifically debated and ultimately rejected new laws like Obama's DAPA program.

There Is A Big Difference Between Executive Discretion And Bestowing Benefits
In the 1985 case Heckler v Chaney, the Supreme Court held that plaintiff death penalty opponents could not use the Administrative Procedure Act to force the Food and Drug Administration to take enforcement actions against states who used certain drugs for lethal injections that had not been approved for that purpose.

In that case, the Court found that the non-enforcement decisions of federal agencies  were "generally committed to an agency's absolute discretion" and were therefore "unsuitable for judicial review."

Judge Hanen found that Obama's DAPA program, however, cannot be characterized as "non-enforcement" since "it is actually affirmative action rather than inaction."

Specifically, Hanen notes that DAPA "awards legal presence to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel." "Absent DAPA, these individuals would not receive these benefits," Hanen continues, "Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits."

Immigration Officials Have No Discretion In How To Implement DACA/DAPA
In addition to finding that DAPA is a bestowal of benefits, not an act of non-enforcement, Hanen also found that the program includes no real acts of prosecutorial discretion at all. 

All law enforcement entails necessary acts of prosecutorial discretion by law enforcement officials. The Highway Patrol does not stop every driver going over the speed limit and your local police department does not investigate every bike theft. But these decisions are made on a case-by-case basis by law enforcement officials. 

Obama's DACA program, however, is not at all like these very common and accepted forms of prosecutorial discretion. Asked to identify a single case where an immigration enforcement officer was allowed to use their discretion to deny a DACA applicant deferred action status, the Obama administration failed to identify a single case (see footnote 101 on page 109).

Preventing The Implementation Of DAPA Preserves The Status Quo
In addition to showing that he will likely prevail on the merits, a plaintiff seeking a preliminary injunction must also show that he is likely to suffer irreparable harm without injunctive relief and that "the balance of equities" are in his favor.

Here, Hanen found that once illegal immigrants are granted legal status through DAPA, it would be virtually impossible for a court to undo the harm afterwards. 

"The Court agrees that, without a preliminary injunction, any subsequent ruling that finds DAPA unlawful after it is implemented would result in the States facing the substantially difficult if not impossible task of retracting any benefits or licenses already provided to DAPA beneficiaries," Hanen writes. "The genie would be impossible to put back in the bottle."

In addition to the states suffering irreparable harm, Hanen notes that potential DAPA beneficiaries would not be significantly harmed by continuing to live under the existing status quo. "The court notes that there is no indication that these individuals will otherwise be removed or prosecuted," Hanen writes. "They have been here for the last five years and, given the humanitarian concerns expressed by Secretary Johnson, there is no reason to believe they will be removed now."