Thursday, December 11, 2014

Being Judge Mental On Immigration

Looks like the red states suing President Obama over his immigration action have gotten the judge they wanted for an injunction that could wreck the entire plan.

The lawsuit is led by Texas Attorney General (and Gov.-elect) Greg Abbott and joined by 17 other Republican states. They ask for an immediate injunction to stop administration officials from moving forward; if they succeed, the actions may be halted before they can begin taking applications, which the White House expects to start doing this spring. 
Legal experts say the lawsuit is flawed on questions of "standing," which requires proof of a tangible injury to the suing party; and on the merits, where longstanding legal precedent grants the executive branch a huge amount of discretion when it comes to enforcing immigration laws. 
But in a calculated move, the Republicans landed the case before their dream judge: Andrew S. Hanen of Texas, appointed by George H.W. Bush. Hanen has fiercely criticized the Obama administration where it has shown mercy on immigration enforcement. In a December 2013 order, he said the Department of Homeland Security "assisted" a criminal conspiracy by failing to prosecute or deport the smuggler of a 10-year-old girl brought into the United States illegally.

So what kind of damage can Judge Hanen do?  Plenty.  Despite the lack of standing issues with the case to begin with, if Hanen agrees with Texas and the 16 other states, Obama's immigration action would be blocked from going into effect.  The case would next go to the 5th Circuit, which would then be asked to lift such an injunction while the appeal was pending. Odds are real good the 5th Circuit would then tell Obama to go jump off a cliff and keep the injunction in place, and Obama's immigration plan would be in limbo until the 5th Circuit then got around to making a decision.

If the case goes to the Supreme Court, the Obama administration would have much better odds.

When it comes to the merits, the Republicans may have a tough time at the Supreme Court, should the case eventually reach there. Legomsky pointed to two Supreme Court cases — both cited in the Obama administration's legal memo justifying the actions — Chaney v. Heckler andArizona v. U.S. as examples of the "very broad prosecutorial discretion" that the executive branch has on the issue of immigration.

In 2012, Justice Anthony Kennedy wrote in Arizona v. U.S., "Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all." His 5-3 majority opinion was joined by Chief Justice John Roberts.

But the path to SCOTUS has land mines all over it.  We'll see how this shapes up.

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