When President Obama used his executive authority to protect millions of undocumented immigrants, he acknowledged that his plan would stir both “passion and controversy.”
Little did he know how intense the response would be.
“Obviously I’m frustrated,” Obama said during a news conference Monday, pointing to a legal challenge pending in federal court.
In the seven months since his prime time address to the nation on immigration reform, lawsuits and incremental blunders have stacked up to thwart implementation of an ambitious plan that was to be a cornerstone of Obama’s legacy.
Some setbacks have been the result of legal challenges awaiting decisions in federal court. Partisan opposition has been fierce. But other obstacles were the result of the administration’s own roll-out, calculations and responses to those pending cases.
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“We are being as aggressive as we can legally to first and foremost appeal that ruling and then to implement those elements of immigration executive action that were not challenged in court,” the president said.
It is likely that the millions of undocumented immigrants that would benefit from the measures will have to wait until summer of 2016 before the courts decide their fate, pushing the program back into the waning days of Obama’s second term.
Appearing visibly disappointed, Obama insisted during a summit of world leaders in Germany that he was convinced his programs were lawful.
He faulted a “short-sighted approach” by Republicans for stymying comprehensive reform in Congress, an issue that will likely hang over the 2016 presidential election.
For the millions of people the president encouraged to “come out of the shadows,” in November 2014, the price has been steep and there is little relief in sight.
The two executive programs — known as Deferred Action for Parental Accountability (DAPA) and an expansion to Deferred Action for Childhood Arrivals (DACA) — were designed to protect the parents of American citizens and so-called “DREAMers” brought to the U.S. as young children. All told, more than 4 million undocumented immigrants would have been protected from deportation and allowed to temporarily live in the United States.
Just three months after Obama signed the orders, a federal court ruling in Texas stopped the plan in its track. Since then, qualifying immigrants have been in limbo despite the fact that hundreds of legal analysts, elected officials and immigration experts remain confident that the administration will ultimately prevail.
That confidence may have actually hurt the plan from the get-go. Early on, immigration officials prematurely issued benefits under the new executive measures to thousands of undocumented immigrants before the programs were scheduled to launch. That oversight infuriated District Court Judge Andrew Hanen to the point that he threatened sanctions against the federal government.
Hanen blocked the programs even before they started, hanging his decision on a minor procedural detail that some legal experts say the administration could have not only avoided, but can still correct. Because the case was brought jointly by Texas and 25 other states, it virtually crippled implementation on a national scale.
When Obama defended the government’s position during a town hall meeting with msnbc in February, he used the same words he relied on Monday, promising to be “as aggressive as we can” at each stage of the legal process.
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But after a string of defeats in two separate courts, the administration is momentarily pumping the breaks.
Federal officials were prepared to begin implementing the programs in two phases, with the first portion launching in mid-February, followed by a second wave in May. Instead, plans for the 280,000-square-foot building leased to for the program and thousands of new-hires to review applications are now on hold.
Any chance that the federal government would begin accepting applications for the executive programs in the near future was abandoned last week after the Justice Department quietly announced that it will not ask the Supreme Court to intervene at this stage.
That move was seen by many as a failure by the Justice Department to get the preliminary injunction on the programs lifted. Others claim it was a strategic retreat designed to allow lawyers for the administration time to prepare arguments for July at the Fifth Circuit Court of Appeals, which is notoriously conservative.
“They should pull out all the stops, but they’re making a judgment call that it will be a waste of time and effort on something they’re not going to win,” said Daniel Costa, director of immigration law and policy research at the Economic Policy Institute.
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In a case where the stakes are incredibly high, the spotlight and scrutiny has fallen squarely on the attorneys arguing on the federal government’s behalf.
In a Brownsville, Texas, courtroom earlier this year, government lawyers acknowledged that that immigration officials has mistakenly granted deportation reprieves to some 100,000 immigrants in the months leading up to the court hearing. Visibly angry, Judge Hanen suggested that sanctions could be in order if he found federal attorneys knowingly misled him when they said the executive actions had not been implemented.
“Like an idiot, I believed that,” Hanen told U.S. Deputy Assistant Attorney General Kathleen R. Hartnett.
Months later, Hartnett’s colleague was chided by an appellant judge for being ill-prepared. When asking the court to lift the temporary freeze on the executive actions, Justice Department lawyer Ben Mizer was grilled for not being prepared in proving the administration would ultimately win the case. “If you don’t argue constitutional claims, and constitutional evidence could go either way, then haven’t you lost this motion today?” Judge Jennifer Elrod asked.
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That both the district and appeals court would decide against the administration did not come as a surprise – the states behind the lawsuit were strategic in finding sympathetic courts to file the suit. But for the immigration attorneys on the ground with a community frustrated over the delays, any unnecessary misstep could have ripple effects.
“This is like watching a tennis match be lost because they keep on hitting the ball into the net,” said Charles Kuck, an Atlanta-based immigration attorney. “There are a lot of unforced errors here.”
Some legal experts believe the administration has not exhausted all options.
Judge Hanen’s order cited the administration’s failure to comply with the Administrative Procedures Act. Hanen concluded that the administration was required to hold a 30-day “notice and comment” period when announcing new rule changes.
The administration contests Hanen’s decision, arguing that the executive measures are a policy shift, not a new regulation, and would not be required to solicit public comment.
Peter Margulies, a professor at Roger Williams University School of Law, said the administration still has the option to open a “notice and comment” period, which would jumpstart the process for the federal government to begin accepting applications. But it’s an option the administration isn’t exactly jumping on.
“They would tacitly admit they were wrong in not going that way in the first place,” Margulies said. “Notice-and-comment is a very cumbersome process – it’s a pain. It takes time, 8- to-12 months at least. It would run out the clock on this administration before DAPA could be effective.”
There is little chance the administration would go that road before the Fifth Circuit rules on the current injunction. If the administration loses, the case will likely go to The Supreme Court in October. There’s no guarantee the court would take the case, and even if it did, it would significantly delay the possibility of implementation before Obama leaves office. And because the programs are an executive action and not law, the next occupant of the White House could erase the measures with a single stroke of a pen.
“The stakes are enormously high,” said Karen Tumlin, managing attorney at the National Immigration Law Center. “This is clearly an Obama-legacy program, much like Obamacare. The human costs are enormous.”
Amanda Sakuma